tag:blogger.com,1999:blog-249135022024-02-08T07:02:05.426-08:00Damned DefendersStories from the Misdemeanor Division of the Public Defender's OfficeDavid Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.comBlogger20125tag:blogger.com,1999:blog-24913502.post-974731977306618762008-03-28T17:50:00.000-07:002008-03-28T17:52:59.289-07:00EnriqueIn the years that I have worked as a Pubic Defender I have slowly lost touch with a lot of my friends, whether they live across town or across the country. I always feel busy, am quite frequently mentally exhausted at the end of the day, and have a new perspective in conversations that is often unsettling to people who live in safe, suburban neighborhoods and picture themselves miles away from “those people” that I see every day. <br />I don’t know if this withering of friendships happened because I started this job right out of law school, when I was so busy studying and taking care of my kids that my friendships began to slip away anyway. Perhaps this is something that happens to everyone as they hit middle age and focus on careers and family, naturally letting go of outside attachments. I try to stay in touch with childhood and college friends, and e-mail has helped with this, but the conversations don’t come as quickly as they once did. The miles between us and the newly forming lines on our faces seem to highlight to different paths we chose and the resulting differences in our lives. I miss my old friends, though, and know that we could rekindle that which brought us together with a few hours and a few beers to help us reconnect. <br />But while my past friendships have faded, my job has allowed me to connect with complete strangers, sometimes in just a few minutes, in an entirely new way. Of course, there are those people who absolutely hate me when they realize the role I play or see who I stand beside. Even my own clients hate me occasionally, blaming the closest person for their problems and reaching out, pulling me down, the way a drowning person panics and can kill a person who tries to pull them to safety. <br />Once in awhile, though, I get the chance to help someone in a such a way that we each walk away smiling, as if we know each other very well despite the fact that we barely know each other’s names. Sometimes the real drama of the courtroom, the possibility of a life-changing sentence, or a liberating acquittal, mean that my clients and I get quickly down to the essences of who we are as people. When this happens, it highlights the fact that, at some level, we are all very similar, and that our fates are all tied together, the way all religions try, and usually fail, to teach us. <br />Enrique and I were probably the same age. He spoke very little English and I very little Spanish, his native language. Consequently, when I met him for the first of two times, we were in my office with an interpreter. I told Enrique, on this Monday morning, that he missed his court date the previous Friday and that a warrant had been issued for his arrest. I assured him that while this was a problem, the fact that he was here meant it was a problem we could fix relatively easily, since the letter telling him of his court date had come back undelivered. I knew I could explain to the judge that Enrique’s presence, the undelivered letter, and the obvious language barrier, meant that he was not avoiding court but simply unaware. <br />Still, as I told Enrique about the warrant, his shoulders slumped and he looked frightenly at the floor. To make matters worse, I had to tell Enrique that the charge he faced, falsely reporting information to a police officer, carried up to one year in “la carce” (the jail) and that it could lead to him being removed from the country by the immigration authorities. I tried to sugar coat this even worse news, telling him that perhaps we could convince the prosecutor to dismiss that more serious charge and allow him to plead guilty to the lesser charge of possessing a false piece of identification. I knew that charge carried a maximum of 90 days in jail and that, because of this, it would be much less likely to lead to deportation. <br />I told Enrique about the possibility of deportation because a new law required me to warn him, and all my clients, that if they were non-citizens, a conviction could result in deportation. The intent of this law was clear: to ensure that non-citizens did not plead guilty to crimes in state court that could send them home via federal court without first knowing about this possibility. Though the intent of this law was good, its effect on Enrique was typical. His eyes grew even more round as I told him, as I was required to, that he not only faced up to fifteen months in jail, he could also be shipped back to El Salvador where there were children who needed the dollars he religiously sent them few jobs but few jobs to provide this. <br />I tried to calm Enrique down, telling him that while these penalties were scary, he was presumed innocent and had the right to a lawyer. My words had the effect of telling a condemned man that at least he had a good meal to look forward to. I assured him that while he could go to jail that there was also a possibility that we could win his case together and that he could go back to work without any expense or penalty. Hearing about this possibility, and seeing me in my cramped office, in my nice used clothing store suit, didn’t seem very reassuring to Enrique. I knew that while acquittal was possible, the judge who was assigned his case would punish us for taking up his time with a trial if he lost. <br />While I always worried about losing the trial and having to watch my client go to jail, thinking about them having to leave jail and catch an I.N.S. bus back to the border was a new fear for me. I worried, but tried not to let it show as I kept talking. Enrique needed confidence, so that he could sleep at night and so that he would look to the judge or jury like the worker he was and not like a border-hopping criminal, as the I.N.S. might label him if were convicted of the more serious charge. <br />I had to model confidence too, so Enrique would trust me and so that look like a judge or jury would listen to us, if it got to that point. If I let my fear of Enrique’s deportation show on my face, a judge or jury could sense this and perhaps wrongly conclude that because this man’s lawyer looked afraid and unbelieving, he must guilty. Poker faces were essential in my job. <br />I had to laugh at myself a little for being so concerned, not because Enrique’s case was minor, but because my fears- and Enrique’s possible fate- were relatively minor compared to the fears other lawyers I passed in the hallway faced every day. After all, I was a “misdemeanor” public defender. I defended clients whose individual charges carried at most one year in jail. While judges had the power to sentence my clients to more than one year in jail, if they plead or were found guilty of multiple charges, I never saw this happen. Judges reminded us often that they had this power, to make sure we kept up the plea bargaining that typically sent them home around three o’clock, but they rarely used it. <br />When I saw my boss in the hallway, in a suit and without his usual fun-loving Irish musician expression, I knew he must be doing another murder trial, with his client’s life in his hands. When I read the newspaper’s account of the trial he was involved in that evening, I had to laugh at myself for losing sleep over a misdemeanor case. How would I react when instead of one year of my client’s life being at stake, the client’s life itself were? Perhaps I didn’t really want to “move up” to felonies as much as I imagined. Such a move would help my career, but could I sleep at night facing that kind of pressure? <br />I was afraid for Enrique, not because I thought he would go to jail but because I knew how ineffectively the “justice system” bureaucracy often worked. I long ago learned that bureaucracy and justice were like oil and vinegar. If they were not constantly agitiated, shaken up by strong advocacy, they would soon naturally separate. Enrique was charged with the worst type of misdemeanor, the kind that carried up to one year in jail. I didn’t know much about the case yet- since the prosecutors had not yet given me the police reports I asked for- but I suspected that son Enrique had been charged this way not because what he was alleged to have done was particularly bad, but because he happened to have been ticketed in Ralston, a suburb of Omaha where Omaha’s law didn’t apply. The “RAL” next to the officer category on the computer screen told me he was ticketed in Ralston. I had seen countless cases like this, and I suspected Enrique was charged with the more serious false reporting because the prosecutors were unable to charge him with false information, which carried a maximum of only six months in jail. <br />For Enrique, the difference was immense. If he was found guilty of the charge carrying up to a year, he could be bussed back to El Salvador. Maybe someone in the federal bureaucracy would read up on Enrique’s case before they started “removal” proceedings against him and see that Enrique was not a criminal but simply a man who wanted to work. But I had seen enough of bureaucracies to know that that the system would flow, like water, down the easiest course, even if it drowned real people along the way. <br />I worked in the center of a massive bureaucracy and I saw it struggle to be efficient and also saw it sacrifice effectiveness along the way. My role was to slow this process down, to get judges and prosecutors to focus on making the system effective as caseloads grew steadily and the need to work quickly became necessary. It wasn’t easy. Judges saw me constantly and grew sick of my face as I slowed down the proceedings to tell them my client’s stories, either after a during a trial or before sentencing. I couldn’t blame them, but this was also a job they appointed me to do. I didn’t want them to like me, only respect me. I tried to “pick my battles,” to stay efficient, and to get to the point quickly. But the ever-increasing number of cases and my place at the end of the “pecking order,” beside my indigent client made me and my clients a convenient scapegoat in a system bursting at the seams. <br />What lies behind such an overburdened system? Politicians from both sides of the aisle promised to “put more cops on the street” and voters lined up behind them. But more cops meant more cases and more demand “downstream” in the justice system. Voters weren’t told this and were also promised “no new taxes.” They wanted to have their “cake and eat it too” and no one told them this wasn’t possible, without serious side effects. They wanted the “security” of more police presence but didn’t want to pay the higher taxes that more judges, court personnel, prosecutors, and public defenders required. More police meant more tickets, more cases and more overtime for police officers. It also meant overflowing courtrooms, overworked public attorneys and overwhelmed justice systems. Judges could either work longer hours or more cases through more quickly. Which path do you think they chose, with a slim chance of being voted out of office and politically-powerless defendants paraded before them?<br />Enrique faced up to a year in jail for conduct in the suburbs that- five blocks away in the city- would have carried only six months in jail, and not led to a potential trip back to El Salvador. Hearing this information, Omaha probably sounds like a nice place to live, since the punishment for Enrique’s alleged crime is half as severe in the city compared to the suburbs. While this was true in Enrique’s case, the reason behind this had nothing to do with leniency or effectiveness. Once again, the bureaucracy ran only on efficiency. All misdemeanors committed in Omaha carried only six months in jail because any crime carrying more jail time required a trial by jury. Our founders mistrusted governmental bureaucracies and believed that we were all endowed by our creator with inalienable rights, such as the right to a jury of our peers in criminal cases. However, the Supreme Court determined that this right only applies to “non-petit” offenses, which carry (you guessed it) more than six months in jail. The City of Omaha thus set the maximum penalty for all misdemeanors at that same level, so that our judges could order jail for half to year and yet our City would not have to pay for expensive, potentially-time consuming jury trials. <br />The efficiency of such a system was undeniable, but the ineffectiveness was inescapable. Judges conducted misdemeanor trials without even allowing the attorneys to take the time to sit down at counsel tables. That took too much time. All but a few of the twelve County Court judges I practiced in front of made the attorneys stand directly before the bench, so that the witness giving testimony stood between the prosecutor and the defense attorney. The Defendant was asked to move to the other side of his or her attorney, so that there were four people standing before the judge. Things moved very quickly this way, but the process looked more like an assembly line than a judicial proceeding. Like a Wal-mart clerk working in the return department, judges routinely called out “next” when a trial was finished or a sentencing concluded. <br />Most people in Omaha, and in society in general, kept a distance from the criminal justice system, the way people never want to inside of a jail. After all, that is where we dal with the “bad people,” the people who lead the six o’clock news. From this safe distance, the system appeared to run smoothly. After all, your taxes stayed low and the judges treated you nicely, if by some twist of fate you appeared before them for a seat belt violation or a speeding ticket. Of course, they saw you in your suit and tie, and knew that- unlike my clients- you held political power. If you made a complaint, people would listen. Judges understood this instinctively. After all, they were appointed by the Governor. They were charged with interpreting the law of the land, but they got there by knowing the unwritten golden rule: know the right people, treat them well and don’t take chances. <br />Only those of us who stood beside the politically powerless, clients whose cases made up the bulk of the misdemeanor cases knew that while the wheels of the system turned efficiently for people with political power, the system itself was ineffective much of the time. After all, people without political power represented a huge majority of the cases it ran on. Public Defenders saw our clients ground beneath the wheels of the system while we tried to save and defend them as best we could. After a few years of this, we usually listened to our mothers who told us not to be public defenders because “you’ll get tired of dealing with those people.” My mother was indeed correct. I did get sick of “those people.” <br />However, it was judges, for the most part that, I grew sick and tired of. They had a chance to pursue justice, to keep police power in check and to treat people fairly. They had six figure salaries and no real fear of losing their jobs. They had contests to see who could get done with court the quickest, like boys racing on their bikes. They didn’t care that the “Minority and Justice Task Force” found that our county’s court system treated Blacks and Hispanics worse than white ones or that our city seemed only one incident away from a race riot. Judges had money, power and personal friendship with the “tough on crime,” Republican governor who gave them their jobs. Why would they care about politically powerless, poor clients paraded before them? Taking your frustrations out on criminal defendants was both politically savvy and convenient. The papers and the voters would leave you alone if you appeared “tough on crime” and while you saw the problems with the system itself, there was always a pock-Mikeed, poor defendant before you who had broken some law, even if it was only driving to work on a suspended driver’s license. Better to focus on and punish this person’s problem- which seemed simple from your suburban, melodramatic, “let them eat cake” perspective- than to focus on the complex issues that plagued the system itself. <br />Judges had to know that the system was not working and that it was infallible. Most police officers wouldn’t lie, but the ones who did lie were often not even creative about it. They knew the judge would believe them over my clients, even if I caught them in a blatant lie. The judge would slide me a sly smile, find my client guilty and hand out sentence that typically carried a “trial tax,” which was a commonly-understood penalty for having a time-consuming trial instead of an efficient plea of guilty. The message to my clients- and to the police officers- was obvious. My clients learned that trials before judges were “slow guilty pleas” with harsher punishments than fast ones. Police officers, who often referred to giving sworn testimony as “testi-lying,” learned what they had to say to get a conviction and that the judge would believe anything they said, no matter how bad any cross examination made them look. “Next,” the judge would say, and they would have the last laugh as the defendant was led away in cuffs, by another uniformed, unionized officer. <br />Judges had to know that some officers were willing to lie to get a conviction. Judges also knew that police officers were paid four hours of overtime pay for each court appearance they made. This gave officers an incentive to arrest people for minor charges. They could then come to court, watch the judge take quick, efficient, guilty plea, and then go home, laughing all the way as they drove past the bank. Police officers made a lot of boat payments by working “court overtime,” which meant coming to court for minutes and then taking advantage of the union contract which guaranteed four hours of overtime pay. What a deal. Who could blame them for taking advantage of it? <br />However, when judges saw the same small group of police officers that I saw every day in court- who typically added 50% to their salaries through court overtime- they had to know how suspect the credibility of these offices was. Judges knew the game that was being played, knew that the officers were more interested in making boat payments than in protecting society, but they usually went “along for the ride.” Better to not stick your neck out for justice. Somebody- like the powerful police union or the “if it bleeds, it leads” press of this Republican dominated city might cut it off. Focus on efficiency, not effectiveness. Let the Public Defenders and the other defense attorneys rant about that. If they say too much, take it out on their clients. They’ll get the message soon and “go along for the ride,” just like you learned. <br />- - -<br />When I looked into Enrique’s eyes, I saw fear of going to jail and of being sent home to his family without the money he went away to bring back. I was frustrated by the system, but I had to try to make it work for him. I couldn’t use him to fight my own political battles or to make my points. As frustrated as I was with the system, Enrique was stuck in it, at least momentarily. I was too. Like the song says, “despite all my rage, I am still just a rat in a cage.” I didn’t have boat payments to make and I didn’t get paid overtime. My suit was nice, a designer label. I bought it at the Salvation Army, but it was nice enough that nobody knew but me. I had essentially nothing, but I also had nothing to lose. As much as a I wanted to tear the system down, I also knew how it worked, and how to minimize the damage it did to my clients. Enrique was unique, a client who broke the law but did it only in the name of feeding his kids. His crime wasn’t taking something from someone else or hurting someone else, but in having documents with a fake name on them, so that he could go to work. He was technically a criminal, but he was only trying to feed his family. I couldn’t let the bureaucracy crush him beneath its wheels and then throw him back to where he came from. I was frustrated with the system I was stuck in, but he gave me something to fight for.<br />I told Enrique what I though would happen. I would set up a “cancel capias” hearing to get rid of the warrant that was now telling the police to arrest him. At that hearing, I assumed that the prosecutor would be too afraid to cut Enrique a decent “deal” since I knew that prosecutors were often disciplined by their boss for giving out good “deals” without good reasons. I assumed that I would have to push Enrique’s case to the brink of a jury trial, to get the prosecutor to give us the deal that would save Enrique from any possibility of deportation: dismiss the charge that carried a year in jail and have him plead to the lesser one- the one that could not get him deported- for a small fine. <br />I probably sound like a bad lawyer for considering a deal like this without first looking at the police report. I was religious about never pleading my clients guilty without thoroughly reviewing the police report. Doing so was not only malpractice, it was also sloppy and hackish, the kind of thing sleazy ambulance chasers did. While I would later review the report before I did anything with Enrique’s case, I also wouldn’t “play with fire.” If I had a chance to secure a plea bargain which dismissed Enrique’s deportable charge for a plea to the other one and an almost guaranteed fine, I would pounce on it. I knew the system was infallible and the stakes were too high for Enrique to demand a trial on the serious charge, when the wrong verdict would send him home, penniless, to those two babies. I clung to principles, but I was more worried about practicalities, especially when deportation was a possibility. <br />I said goodbye to Enrique at 12:30 p.m. and told him I would meet him in courtroom 28 in one hour to cancel his warrant. I knew this wouldn’t be a problem because while the judge in that courtroom was harsh for sentencing, and rarely followed plea agreements, I knew he would see the letter in the court file, stamped “return to sender” and know that Enrique had not been given proper notice of his hearing. This judge’s strict adherence to rules, his 1950’s belief system in radically-different reality- would work to Enrique’s advantage. We would never see this judge again, for trial or a plea (the sentence he might give Enrique was not worth the risk) but he wold give us what he wanted today: a chance to go home without a warrant and the ability to fight these charges another day. <br />But the courtroom was full, and the judge closed it to all new requests, like the one I turned in for Enrique. I had to go with “plan B.” My favorite judge was in another courtroom. I knew he was busy, that a trial had run into his lunch hour, but Enrique’s fate was worth going out on a limb for. I approached the judge, asked him if he would sign a form allowing Enrique to come before him, and saw the look that said, “you ought to know better than to ask for this today” as the judge reluctantly signed it. I found Enrique in courtroom 28, counted Spanish on my fingers to tell him “viente siete”, or 27, as he followed me into the new courtroom. <br />Enrique’s fate had now changed. I now had him before an extremely busy judge (who might be in a bad mood) but he was before a judge who would listen to me, whom I trusted with his fate. I now had the chance to send Enrique to his home in Omaha with a small fine and no chance that he would be forcibly returned to his real home in El Salvador. The chances were still slim that I could convince a prosecutor to give me what I wanted and what Enrique needed, since the timing wasn’t right for Enrique to be making any demands. I assumed we would have to use Enrique’s right to a jury trial, and the “inefficient use of time” that such a trial represented to the prosecutor’s office, to get what we wanted. <br />But I was wrong. The prosecutor who picked up the paperwork representing their case against Enrique was a good friend. She had dreams of escaping the office and was working on her Ph.D in English literature in her spare time. She was reasonable, fair, hard-working and smart. She knew how to separate the real criminals from the ones who were simply brought into court because they drove to work on a suspended driver’s license in the wrong part of the city. She was constantly in trouble with her boss for these things. He was a politician who tested the political winds every time he got up out of his chair. She was a prosecutor who judged case not by the political power of the victims but by the relative blameworthiness of the defendant, and whether a case was worth her time to pursue. <br />I asked her for the paperwork and reviewed the police report. It told me Enrique had been seen “prowling” in the day time near a high school under construction, very near my home, and that he was stopped for running a stop sign. Enrique told me earlier that he had been sent to a job site in an area of town he’d never been to before. He said he saw the construction and drove by it, looking for the man who, earlier that day, had given Enrique an address and had promised to pay him cash for his labor. The officer, after stopping Enrique, looked at his driver’s license. Everything was in order. The officer had then asked both men to exit the vehicle and searched it. Underneath the seat, he found a fake driver’s license, with Enrique’s picture on it, as well as a fake birth certificate. Enrique told me earlier that, desperate for work and for food, he bought these documents from a man. “The thing was,” Enrique told me through the translator, “I didn’t ever use them because I found work in my real name shortly after that.” <br />I had known there was a lot worth fighting for in Enrique’s case. Now I knew there were a lot of things I could fight against. The stop of Enrique’s car seemed suspicious. After all, the officer had gotten a call that Enrique was “acting suspicious.” How convenient that, upon contact, the suspect vehicle ran a stop sign. Enrique told me earlier that he met the officer at a four-way stop, and that the officer waved him through, before turning and stopping his car just up the street. Enrique would be a convincing witness, who would come off, as I had seen him, as an honest working man. I could file a motion to suppress the stop of Enrique’s car. Winning it would be difficult, since it would be the officer’s word against Enrique’s, but it might be worth a shot. <br />While winning a motion to suppress the stop of Enrique’s car would be difficult, winning one to suppress the search of the car seemed probable. Enrique’s car had been searched because he ran a stop sign, a charge that didn’t exactly give rise to the reasonable belief that the car contained bad things. I knew the only way the officer could justify this search was by telling the judge he was suspicious of Enrique because of what the radio dispatcher told him, that someone had reported Enrique as “acting suspiciously.” While the officer could act on such a tip, the prosecutors would have to find the original caller and bring him or her to court to justify this stop, assuming that the officer didn’t see enough, on his own, to justify the search. I knew this was the law in Nebraska, but also knew few prosecutors and only half the judges knew this. Like always, I would probably have to file an appeal to get the judge to follow the law. <br />As I reviewed Enrique’s police report, I considered these tactics for winning his case. But I had long ago, worn down by too many cases and too many bad judges, realized that winning in these courtrooms was not getting the judge to follow the law to your client’s benefit. In Douglas County, winning was getting what you wanted. While the “bad” stop and “bad” search issues I spotted in Enrique’s case were significant, and could be used like clubs if necessary, they were also useful tools to get the prosecutor to give us what we wanted now: to let Enrique go back to work without having to worry about catching the I.N.S. bus home. <br />I was prepared to explain these issues to the prosecutor, to tell her that I could make this case last a long time and probably even win it unless she worked with me and Enrique. While I got along with this prosecutor and she saw me a friend, she also knew that I could be a pain in the ass, when necessary. <br />But I didn’t need to be one. She was extremely busy and in a particularly good mood. Her bosses had been “off her back” lately because turnover in their office had forced them to leave their offices, where they normally stayed, and to make rare appearances in the courtrooms. Forced to walk in the her shoes, they were more forgiving of her perceived leniency. The time was right, she undoubtedly knew, for her to get rid of minor cases like Enrique’s, where real culpability was hard to find. <br />I started rambling on about Enrique, how much I liked him and how I could fight back. She gave me the “shut up” look. “Tell me what you want, Dave,” she said. <br />“Plead to the “possession of false documents. Dismiss the “false reporting. Small fine?” I asked. I knew this judge would follow the prosecutor’s recommendation and that this plea offer would mean no possible deportation. <br />“Okay,” she said, as she called out Enrique’s name. I didn’t even have a chance to explain this to Enrique, but I didn’t mind acting fast and accommodating this prosecutor who had given us what we came for. <br />Enrique looked at me wide-eyed as the judge called the case and the translator quickly tried to put this efficient-looking process into a language he understood. He looked in to my eyes, questioning silently, when the judge asked him how he pleaded. I nodded and he said the same thing almost all my clients said after a similar nod. “Guilty,” the translator told the judge. <br />Enrique still looked at me, questioning and worried. After all, just over an hour ago, I told him that being found guilty meant possible deportation. He trusted me, but he was understandably worried about what he had just done. I wished I would have had time to talk to Enrique, to explain what was going on. I knew, though, that this would end well and that my client’s were rewarded when I kept the system flowing in an efficient manner. I didn’t look like an effective advocate, standing beside a confused foreigner, nodding him into a guilty plea he didn’t understand. I knew, though, that he would be floored by the news, when I explained it afterwards in the hallway. <br />After the judge said he found Enrique guilty of the lesser charge, he asked me if I had anything to say for sentencing purposes. I knew I didn’t have to convince the judge to go along with the recommendation of a fine, but I also knew that saying the right thing might mean Enrique paid $25 instead of $250. I knew the difference would be tremendous for Enrique. After all, $225 bought a lot of food and clothes in El Salvador. That’s why he set out for America in the first place. <br />I kept it short, since the judge would appreciate this and since a few facts would do it. “Judge, he’s a working man. He did something I don’t know if I could do. He kissed two little babies, and one wife goodbye in El Salvador, found his way here and looked for a job, to take care of those two little babies. He got some fake documents in case he couldn’t find work, but he didn’t even need them. They found them under the seat of the car, after he showed them his real, valid driver’s license. He was just trying to work.”<br />I knew the judge was a grandfather, that, like Enrique, he was willing to work hard for his family. I just pointed out things that this Italian, seventy-year old ex-cop had in common with my El Salvadoran, twenty-five year old client, in an efficient manner. <br />“I order you to pay a fine of $25,” the judge said, giving me a slight smile. <br />Enrique and I moved to toward the bailiff, where he would be given a slip of paper reminding him to pay $25 plus the $41.50 in court costs by the date written on the bottom of the paper. He looked stunned. I knew the interpreter had other cases to get to, but I had to make sure he understood what else we accomplished. <br />“Can you tell him there’s no way he’s going to be deported for this, too?” I asked the interpreter. She was originally from Mexico and it seemed like she became more than just a translator when she told Enrique what I asked her to say. Her job normally required her to translate words verbatim, without putting feeling behind them. But she smiled along with me as she repeated my words to Enrique. Enrique looked even more stunned, as if he didn’t know what to do or where to go. I called him out in the hallway, where I normally “translated’ for my English-speaking clients, what the judge had just done to them and what this meant for them in the future. <br />I spoke a little Spanish, just enough to get me in trouble, but I was pretty sure I could explain Enrique’s fate to him, at least the fate that faced him today. “Viente cinco,” I said. (“Viente” was fresh in my mind from having to tell Enrique what courtroom to be in, and I counted to five, silently in Spanish, on my fingers before I told him.<br />“Viente cinco y forty one fifty,” I said, writing it on a file folder. I forgot how to say forty and didn’t want to confuse him in bad Spanish, when numbers worked almost universally. <br />“Viente cinco dolares y quarenta uno dolares y cienta centados?” Enrique asked, pointing at the numbers I had written. Then his face tightened, as if disbelief. “Es todo?” He asked. <br />“Es todo!” I told him, remembering this obvious phrase from Spanish class eight years ago. I remembered another easy one I knew he’d understand. “No mas!” I acted this one out, using another universal symbol. I spread my arms to make the “safe” sign an umpire uses. <br />Enrique then did something that made me sad- not towards him but towards the country I was born in and called home. He reached in his pocket and took out his wallet, speaking to me in English for the first time. I still didn’t think he spoke anymore English than I spoke Spanish. He just thought the universal language in America was money. Perhaps he was right. After all, he’d paid cash for the bus ticket across his country, probably paid the “coyotes’ in cash to smuggle him across the border. The construction bosses who hired him off the same street corner every morning covered their tracks and helped their own companies’ bottom lines, but paying Enrique in cash. Enrique was simply doing what he thought the golden rule in America was: money talks. <br />I could have used it, but defending Enrique had made me feel rich. I complained about student loans and low public defender salaries, but I kissed my own kids goodnight every day of the week. I held up my hands for stop, like a traffic cop does, and shook my head from side to side, using two more universal symbols that rarely need translation. <br />I walked away, saying “gracias” and “no problem” as Enrique still stood there in shock, his wallet in his hand. “Send that money home, to those babies!” I said. <br />I don’t know if he understood me. Something told he did. Fittingly, it’s Father’s Day as I write this story. My own babies are calling me upstairs as I type in the basement. They made homemade cards. After reliving what happened to Enrique this morning and considering what the many governmental bureaucracies might have done to him, I feel very rich and very lucky. <br />My children understand that I have to leave them every day, to get money for the house an dth food. But kids typically understand this only when you explain it using physical objects. If you don’t show them what rewards work give s them, it seems absurd to them.<br />What must Enrique’s children think this father’s day? They haven’t seen him in months, maybe even years, but, like me, he goes to work for them every day that the man shows up at the street corner he’s learned to stand on. Do his kids understand that sacrifice, when they open up the envelopes he sends them, twice a month? Is he having a happy father’s day, like I am, or do they think of their dad as only the letters on the page, the way children focus on what’s before them in deciding what is important. <br />Will they understand that Enrique’s absence- from their bedsides every night and for years of their lives- is for them? Will these babies ever realize that what Enrique did is what all fathers probably aspire to but that few carry out? <br />Happy father’s day, Enrique. Maybe someday your children will understand what you went through, when they have children of their own.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com2tag:blogger.com,1999:blog-24913502.post-59148195424670412932008-03-28T17:46:00.000-07:002008-03-28T17:49:35.937-07:00TeresaWhen I look back on my years as a misdemeanor public defender, Teresa’s case seems to sum in all up. She taught me how much people can accomplish and how far they can fall. She taught me to have faith and reminded me to remain skeptical. She was one of the most inspiring clients I ever represented and also one of the most depressing. She gave me hope to never giving up on people and taught me to expect the worst. Above all, she taught me that people can change with help and that even with help this change doesn’t always last. <br />Before I met Teresa at the jail, I read the reports describing the State’s case against her. I saw that she was charged with driving under the influence of drugs, which allegedly occurred the day she was picked up. I also read that she was facing charges for approximately twenty purse-snatching incidents over a two-month period. Each count carried up to six months in jail and each purse carried someone else’s identity, meaning that there would be twenty victims in the courtroom, crying out for justice and jail. Before I met her, I knew Teresa wasn’t going anywhere for awhile and that I had my work cut out for me to perform damage control. <br />When I first saw Teresa, she was laying on the floor of the jail interview room surrounded by several guards, screaming like a frightened child. I could see that she was disoriented but also could see that the guards were not beating or hurting her. One was laughing, as if he thought she was putting on an act, but the other two were helping, asking her if she was alright and telling her that she had been brought here to see her attorney. <br />When I walked into the room, she saw me and calmed down slightly, as if she now believed what the guards were telling her. She caught her breath and they helped her into a chair, leaving us alone to talk. When I told her my name, she repeated it several times, as if she were trying to burn it into her memory. I continued talking to her in a soft voice, the way I talked to my daughter when she woke up from a nightmare. Teresa looked at me in her addicted, drug-deprived state as if I might be her savior but I felt a little like a false prophet. To calm her down I told her it would be alright and that I was here to help, but I knew she was facing twenty separate theft charges, armed with an over-worked lawyer, three months past the bar exam. <br />A big part of my job was delivering bad news, but today was not the day to do it. Today, when she was coming down from the drugs, I told her everything was fine. Later, after she made it through this first ordeal and came to her senses, I would tell her the truth about what she was likely facing. Telling her the truth today felt like watching a person starve while holding bread in your hand. All Teresa needed today was something to get her through the week, a promise to hang onto until I saw her next week, when I promised to visit her again and when the drug cravings started to wear off. I cut our interview short with this promise since I knew she was in no shape to talk about anything complex. As I walked out of the room, past the guard who was walking in, Teresa repeated “next Tuesday” as if repeating it gave her hope, as if an appointment next week meant she would survive this one. <br />The next week, I saw a different Teresa. She was still in the oversized, drab orange jumpsuit that would make a supermodel look bad. The terrified expression on her face was gone though. She looked calm and alert, but still scrawny and weak. She moved slowly, as if in pain, but patiently answered my questions like she had nothing to hide. I asked about her background, telling her that I needed to know a little about who she was before I heard about what she did to bring her here. <br />As Teresa told me about her life, she seemed like a skilled, experienced liar. She told me she had a college degree, a nurse‘s license, and a heroin habit. She was about forty and her dry, blond, dark-rooted hair was matted on one side, telling me she had just pulled her head off of the cot and hadn’t made it to the beauty shop in a month or so. Her skin was sickly white and her blue eyes were sunken and vacant, as if she was missing a substance that made her feel good and look terrible. <br />When I told her she was charged with driving under the influence of methamphetamine, she seemed puzzled. She told me she didn’t use meth, only heroine. She told me she and “Mickey” only did “H.” She looked at my tie and explained that by “H” she meant heroin, in case I didn’t know. She said went on to tell me that she used heroin the day she was picked up, but never “crank” or methamphetamine. I told her that her urine tested positive for it, but she still insisted that she only used heroin. She showed me the track Mikes on her arm, as if this proved her point, but I knew meth users shot it in their veins as well. This didn’t make her story sound convincing, in other words. I wasn’t too worried about this anyway. We had many other, more important things to worry about besides which drug made her drive erratically and fail the field sobriety tests. I couldn’t exactly “win” her driving under the influence of drugs case by claiming that the prosecution picked the wrong drug. <br />When I asked her about the more worrisome problem, the twenty purse snatchings, she told me all about Mickey and that her name had changed since she married Mickey about a week before she was arrested. My file had the name “Teresa Murphy West” typed across the top, but she told me her new last name was “Maldonado,” as if this were very important. She went on to tell me about moving to Omaha with Mickey, about using drugs with him and about stealing the purses to buy more drugs. She told me Mickey would go into the grocery store first and would pretend to be shopping by himself. When he found a woman shopping alone, with a purse in her grocery cart, he would play the dumb bachelor trying to make a meal and ask her a basic question about how to cook a certain item. When the now distracted woman spoke to Mickey, Teresa would come up from behind and grab the purse. <br />As Teresa told me this, I remembered hearing about the wave of similar purse snatchings on the news. I hadn’t paid much attention to the story, but I remembered a report about a blonde white woman and an Hispanic male who worked together and always played the same trick. The only problem for Teresa was that every grocery store had security cameras and every local news station ran her video as its lead story in the weeks before her arrest. As if that weren’t enough, there was also the problem of the police finding roughly half of the missing purses in the van Teresa was picked up in. <br />Looking at skinny, blond, desperate-looking addict in front of me, I knew I couldn’t convince anyone that she was framed or that the police had the wrong woman. I knew that I couldn’t win Teresa’s case through a trial, especially since she was charged with offenses that did not entitle her to a jury of her peers. I knew that since we were stuck with a judge or bench trial only that the real work- and the only way to “win” for Teresa- was to minimize how much time she would spend in jail or on probation after she jail. I knew I couldn’t stop the prosecution from proving what Teresa had done. I knew the best thing to focus on, in a case like this, was on what Teresa could do to show the judge that she had a desire to reform herself and get back to the relatively normal life she had before the drugs pulled her down into a darker world. It was too late to change the past, but perhaps if I helped Teresa act in the present, we could both try to minimize the potential damage to her future. <br />Since Teresa was also facing a felony drug charge and was unable to afford her bond in either case, there were two ways to proceed. On the one hand, she could schedule a plea of no contest in the near future and I could tell the County Court judge that she had “bigger fish to fry” in District Court on the felony. This might convince the judge that he or she did not need to impose a harsh sentence because, after all, Teresa was facing more serious charges and was unlikely to be going home soon anyway. Of course, this strategy also risked the judge imposing a harsh sentence, thinking that if she wasn’t going home for awhile anyway, a long sentence would it wouldn’t matter and would look a lot better in the paper to suburban “tough on crime” voters. <br />On the other hand, Teresa could stay in jail on this charge and let the “heat” caused by the press coverage die down a little bit. I told her to do this since I was afraid of what a judge would do to her if we came into court now, when the case was fresh in the minds of the prosecutors, the victims and the judge. The waiting would not hurt Teresa in any way since she was also being held on other, more serious charges felony narcotics possession charges. She was not going anywhere, in other words, and I knew that Teresa’s face- which would tell a judge a lot about her future prospects and her possible success on probation- would look a lot better in about sixty days. She could begin taking attending Alcoholics pr Narcotics Anonymous classes in jail right now (and promise to continue them on the outside) to prove her seriousness and commitment to the judge. <br />Teresa took my advice and waited it out. About two months later I visited her in jail and she looked even better, the way she must have looked before the drugs took hold. The color was returning to her face and the grim, desperate expression was fading away. Smiles and laughter came more easily to her face, but the repeated questions about Mickey were still there. Had I heard anything about his case? Could I call his lawyer and give him a message? Could he call me and ask me questions? I told her there was a “conflict” between Mickey’s case and hers and that the reason Mickey now had a private attorney appointed was that it wasn’t proper for me tp be talking directly to Mickey, since he already had a lawyer and I couldn’t look out for both his and her interests. She looked at me puzzled, as if it were an insult to hear that there was a difference between what might be good for her and what might be good for her newly-acquired husband. I knew a little about Mickey since I reviewed his record. By looking at the dates, I saw that while Teresa was attending college, working and starting a family, Mickey was repeatedly going in and out of jail. He wasn’t a killer, but he appeared to have always been in trouble. Jail, and probably needles, were a constant in his life while these two things seemed relatively new in Teresa’s. <br />Part of me wanted to grab her with both hands by the jumpsuit and tell her she was crazy to stay with a scumbag like that, that she looked better now that she was away from him and the needles he offered her, that she had a good life before she was dragged down to his level by needles and videocameras. But I didn’t. I knew she was in love and that love was often blind. My job was hard enough without becoming a personal coach. As frustrating as it was to hear a once successful college graduate pine for a known, convicted drug dealer, I knew telling a person to not be in love was like telling an addict to not want a drug. It would be more productive to pound your head against a hard object. Maybe absence, in Teresa’s case, would make the heart grow less fond and maybe as Teresa’s mind cleared she would begin to see what was obvious from the outside. She married a three-time felon at a period in her life when she thought snatching purses was a way to make her life better. Maybe she would wake up to the stupidity of both decisions, and maybe she wouldn’t. I hoped she would clean up and wise up, but I had plenty of other people and cases to worry about. Teresa stood out among my clients because of the fact that she had at one time possessed a lot of the things my middle class, white world held so dear: a job, a college degree, kids and a house in the suburbs. I fought for Teresa, hoping that perhaps she could get back there someday, but I also knew that while she had once been blessed, Teresa had also injected away the gifts and privileges that my poorer clients dreamed of. I would fight to give her a fair chance to get these things back, but I couldn’t waste my time trying to change her mind. Like all my clients, I would fight to give them an opportunity, tell them to act on it, and leave the rest up to them. Three thousand cases taught me that it was essential to lead my horses to water and also impossible to make them drink it. I fought to give people opportunities to improve. They usually pissed them away. Sometimes they didn’t, though, and that kept me going. Maybe Teresa would be one of the few clients to pull herself up an away or one of the many who kept coming back to see me at the Public Defenders Office throughout their lives. Time would tell. <br />I spoke with Kelly, the attorney in our office who represented Teresa on her felony, one day in the hallway. She motioned me into her office and asked me what was going on with Teresa’s many misdemeanor cases. I told her the trial was coming up and that while Teresa looked better, the sheer number of charges she faced made her prognosis probably bad and difficult to estimate. Kelly told me she thought the judge who was assigned Teresa’s felony was considering reducing Teresa’s bond to around a thousand dollars given Teresa’s relatively clean past record and recent “cleaned up” look. If Teresa sought treatment, Kelly told me, she might be able to get probation on her felony. The misdemeanors, with the many victims and multiple videotapes, were her biggest obstacle at this point. If I could get a judge to give Teresa a chance on probation on the misdemeanor charges, she might be out of jail and on with her life in just a few weeks. <br />“What I can’t figure out,” I told Kelly, “is why a lady like that gets involved with a guy like Mickey.” <br />“I know,” she said, “but have you heard about the diamonds?” Kelly went on to tell me that while Teresa and Mickey were in a lot of trouble in Nebraska, they were also facing felony theft charges across the river in Council Bluffs, Iowa. Those cases probably wouldn’t go far though, she said, because the amount of the thefts wasn’t very high and the Iowa prosecutors were under the impression that Mickey and Teresa both had “bigger fish to fry” in Nebraska. This was true, of course, but it was also typical. When a person faced charges in three separate places, it was possible to minimize the damage and jail time the client faced because each separate bureaucracy would likely assume that a different one would do the real work. <br />Most judges and prosecutors, however honorable they were individually, enjoyed going home at five, or even three. If you gave them a reason to avoid work, they would jump on it. I knew that when I told the County Judge that Teresa faced felony charges in two states, the Judge would likely want to be done with her. What I wouldn’t tell them, of course, was that these felony charges were nearly over and that the biggest fish Teresa had to “fry” was the misdemeanor charges she faced with me. I wasn’t serving justice, I was doing what the Ethical Code told me to do, looking out for the best interests of my clients. Government is inherently lazy, in most instances, and I was taking advantage of this to help my client. While news of a new felony in another state seemed like bad news for my client, I knew we could both take advantage of a “quick fix” bureaucracy and use this to Teresa’s advantage. <br />I wasn’t ashamed of this type of behavior either. I justified it because I truly believed that it leveled the playing field my client was placed on. Prosecutors, who thought of themselves as the “good guys” in the white hats, were constantly willing and able to do bad things in that capacity. Whether it involved going along for the ride with certain cops who routinely “testi-lied” or tacking on unsupported charges to encourage plea bargaining, prosecutors did a lot of bad things in the name of doing good. I was aware that the public looked at my shackled, orange jumpsuit clad client as the devil they saw on the six o’clock news- with its “if it bleeds it leads,” ratings-driven format. I was also aware that the public looked at the public defender who stood by this scumbag (and in so doing, defended the individual rights that defined us as a nation) as on the same low level. <br />However, I was also keenly award of something the public did not know. I was reminded of this truth every day, and the truth is that the devil, while very real, also most often appears, not in an orange jumpsuit, but dressed in drag. The real, dangerous devil is not the melodramatic looking villain in the black hat or the orange jumpsuit, but the double-breasted (or black robed) charmer who is willing to do the most terrible things in the name of doing good. Just as the crusaders raped and killed in the name of God, thinking their “noble” cause gave them license to sin, some prosecutors, and some judges, were willing to trample on the Constitution they swore to uphold, if it meant going home early. “Well, he’s guilty of something” I heard one rationalize as he offered my client a plea deal, after having threatened a long jail recommendation if I dared to push my client to exercise his sacred right to a trial. These prosecutors believed not in the presumption of innocence or in the inherent infallibility of a bureaucratic justice system, but instead echoed what former Attorney General Edwin Meese once said: “rarely are suspects innocent.” <br />I was being sneaky, yes, by telling the judge that Teresa had “bigger fish to fry” with her felonies when I knew these cases were truly almost over. I wouldn’t lie and, if pressed, I would tell the truth about what I had been told about the probable outcomes of these cases. I twisted things this way because I felt, genuinely, that this sneakiness was “the manipulation that an inherently manipulative system produced,” to paraphrase Malcolm X. If I stood by and spoke the whole truth while the prosecutors twisted it to their advantage routinely, I was not being a good advocate and would be laughed at like a boy scout in a strip club. I knew the judge wouldn’t press me either. As long as I gave this politically-motivated, nine-to-three judge something to hang his or her hat on (so that a lenient sentence could be justified later if it his the papers) Teresa would come out o.k. The real trick was to minimize the potential political damage to the judge, minimize his or her work load, and smile all the while, as if the emperor were fully clothed. I knew how to play the game and loved to play it hard, like a jungle rat helping my client through territory that I was familiar with but that they would easily get lost in. <br />Back to the diamonds. Kelly told me, without telling me where she heard it, that there was a rumor that Teresa and Mickey had hidden a bunch of diamonds somewhere in Iowa. The idea was, she said, for them to serve out their jail time on the “small” thefts and then live out the rest of their lives “on the rocks,” so to speak. “Kind of like a modern day Bonnie and Clyde” I said, while Kelly and I laughed. I had to admit I was a little envious. One of my worst clients was rumored to have created a nest egg, while I still had $60,000 in student loans, $25,000 in credit card debt, and a car made during the Reagan administration. Maybe crime did pay, I wondered, though I also wondered how well two heroine addicts, who hadn’t considered the existence of video cameras, could plan a diamond heist and stash to live out their lives on. In my experience, drug addiction, in its early days, produced many grandiose plans for living on the beach and, in its later stages, usually resulted in a reality of living in a cell. I envied Teresa’s possible future, as I thought of how hard my own wife worked and how little time she got to see her kids, but I also doubted whether the diamonds were anything more than a drug-induced dream. I had plenty of other cases and no time to be envious of my clients who were in jail. Maybe Teresa would live her life out the way Tim Robbins’ character did in The Shawshank Redemption, but I doubted that this Hollywood ending would occur in real life. <br />I arranged an early plea hearing for Teresa, in front of one of my favorite (most lenient) judges. I stressed that Teresa had “bigger fish to fry” on her felonies, but also pointed out that she might be released soon. I did this because I knew that if I made Teresa’s future sound too bad, this judge would think that a year-long, concurrent sentence, which would be the most politically safe one, wouldn’t be “no big deal” for such a hardened criminal who was likely going “up th eriver’ for a long time. I knew Teresa’s hand could be overplayed, in other words. <br />The prosecutors were insistent upon making sure that the victims of the purse snatchings were taken care of. Reasonably, the prosecutor wanted to make sure that all personal and sentimental property was moved from evidence back to the rightful owners. I respected that, knowing how important the picture of my daughters that I held in my wallet was to me. The prosecutors, not surprisingly, were not opposed to Teresa being sentenced to probation. I had done them a tremendous favor by not requiring them to bring thirty witnesses into court for a trial, and probation would be a good way for Teresa to raise the money to reimburse the victims for any money that was lost. None of us really believed that Teresa was going to be able to raise thousands of dollars in the next two years, but the judge required it, since it was only fair that if Teresa could afford it, she pay the people back for what she had taken. Requiring these payments was also the politically safe thing to do, since the judge considered, as they always do, how she could spin this sentence if it became the lead story on the six o’clock news. “I put her on probation,” the justification would go, “but I did it to ensure compensation for the victims.” The early plea was good behavior by me as far as the judge was concerned, and Teresa was getting the reward for this, with a condition attached so the judge could justify this in the future if need be. After all, the judge mad six figures for less than fort hours of work a week. As a judge in Nebraska, you were virtually always elected, since the ballots had only a “retain” or “not retain” choice, as long as you stayed out of the headlines for anything else but being “tough on crime.” Since Teresa’s case was no longer the “lead story” it was politically safe and also efficient for eh judge and the prosecutor to let Teresa out. To their credit, the judge and the prosecutor also listened to me as I described the difference between the Teresa who stood before them today and the one I had first seen on the floor of the jail, screaming and coming down off heroine. <br />The judge was not altogether lenient, however. While Teresa was sentenced to probation, she had to wait in jail for thirty more days. While I didn’t want this for Teresa, I thought it was a good message to send. These were serious crimes and while the judge was impressed with how well Teresa had done in jail, she was telling Teresa how unafraid she was to put her back there if she didn’t take the probation seriously. <br />Teresa was thrilled. She now had an “out date” to focus on and knew what she had to do to avoid going back to jail. I saw a changed person, but when she asked about Mickey once again, I suspected that she could slip back to her old self fairly easily. <br />Next, I did something for Teresa that I rarely did for clients. I prided myself on working hard for them but also drew a bright line between my work and my home. My clients were often desperate and sometimes dangerous. As hard as I tried, my clients were usually found guilty and they most often truly were, as much as I hated to admit that the “rarely are suspects innocent” phrase was actually true. I hated a system that believed this, but I had to admit it was true. Even if my clients were often innocent of all the crimes they were charged with, they were usually guilty of something. I longed for the truly innocent client, but rarely found him or her. What killed me were the few truly innocent clients that I couldn’t save inside a system that believed they were “probably guilty of something.” I had to fight off cynicism myself amid a parade of horribles, where an occasional innocent was paraded in alongside the assholes and addicts. <br />While my clients were often guilty, my two small daughters were truly innocent. I felt guilty about the debts I had acquired and the low pay I brought home in a job that I had grown addicted to. The least I could do for them, and for my wife, was to make sure that my chosen career didn’t creep into their innocent world. I kept an unlisted number, kept only small family pictures at work and never discussed my kids. <br />Because I believed in Teresa and felt badly about what a shame it was that she had fallen so low, I asked a family friend to talk to her. My wife had a good friend, Marnie, who was a recovering alcoholic / addict whose life was now coming together completely. I knew that as a part of Marnie’s recovery, she now drove her new car to the jail once a week to conduct a meeting of Alcoholics Anonymous for females only. “Marnie” invited our family to celebrate her five year sobriety “birthday” and at the party I pulled her off to the side. I told her about Teresa, how Teresa once had it all and pissed it away as an addict. I asked Marnie if she’d talk to Teresa and to tell her that her life didn’t have to go back to the way it was with heroine. It seemed like such a shame and a waste of a life to just let her go out without any help. Since I knew Marnie’s words would mean a lot to Teresa and that, as a recovering addict, Marnie would know how to talk to Teresa in a way that a non-addicted person could never grasp, I asked for her help. I couldn’t keep Teresa from going back to using, but maybe I could give her a tool, or a person to talk to, in case she decided to reach out for some help. Marnie nodded and said she’d talk to Teresa, but only if Teresa came to a meeting. Marniee knew, as I suspected, that the first steps would have to be Teresa’s or she would be wasting her time. <br />The next time I talked to Teresa, I told her my friend would talk to her if she came to a meeting. The next time I talked to Marnie, which was about a month after Teresa was released from jail, she told me Teresa came to the meeting in jail, had gone to a meeting nearly every day with Marnie since she got out, and that she was now Teresa’s “sponsor.” I knew “sponsorship” was a voluntary system in Alcoholics Anonymous where a person with several years of sobriety advises a “newcomer” about things they need to do to stay sober. Since it is voluntary, it can end by either party at any time, but since the only requirement for being a member of A.A. is a sincere desire to stop drinking or using, if it ends it’s almost over anyway. Alcoholics describe alcoholism and addiction as a “cunning and baffling” disease, and sponsorship not only helps the “newcomer” stay sober, it also helps the more seasoned alcoholic or addict remember how messed up they were when they came it and how important it is to stay sober. <br />Teresa stayed sober. Six months later she came into see me. I hardly knew her. She looked unbelievably healthy and clean. I knew Teresa had Hepatitis C and that her health was always questionable because of this, but she still looked great. Just seeing her almost brought me to tears. I couldn’t believe the difference a few months could make. She smiled even more easily now and thanked me for what I did. She talked proudly about Mickey and said he was going to be getting out of jail soon. “He’s going to be in the program too, with me,” she said. <br />Just then Kelly, Teresa’s felony attorney walked by. “Teresa?” she said. “Oh my God, is that really you?” Kelly was a tough-minded p.d., but she also had a soft side and an incredible amount of empathy. I saw that Kelly was tearing up as I had, upon seeing Teresa, and I remember that moment as one of the great, rare ones that only Public Defenders get to see and live for. Kelly and I saw Teresa when she was at her “bottom” and now we saw her on the rise. Our jobs required us to see horrible things constantly and now we got to see that one of these horrible things cleaned up well and changed from looking like a corpse to looking like a colleague. We were overwhelmed to have participated in this transformation. Instead of being called names and blamed by our clients for their transgressions, we were able to hear a rare “thank you” and see its sincerity as well as the effects of our labors. Suddenly, all those student loans, all the hand sanitizer, all the ill treatment by clients, judges and prosecutors seemed worth it. My classmates were driving new cars and rising up their firm’s ladders, but I was making a difference, even if it was for only one person out of a few thousand. “I helped saved one,” I felt like saying to anyone and everyone, as Teresa walked away. <br />I filed Teresa away in my mind, as a success story, and it sustained me for months. I looked for more Teresa’s amongst my clients and thought of my role as both helping my clients fight for their innocence and also fighting to give them the tools they needed to stop using or drinking, if they asked for the help. I didn’t care that they called me “public pretender” or asked if they should get a “lawyer,” even though they already had one. I wasn’t so envious of the private attorneys, even the ones who knew the law only half as well as I did and yet who made four times the money. It didn’t matter so much. If my most addicted, sickly looking client could change, who couldn’t? I knew that most wouldn’t, but now it was worth trying in every case. Maybe there was someone else out there who just needed the right tools to go from dirty and drugged to clean and sober. <br />I thought things must be going well for Teresa, until I read the paper one night after work. It told how Teresa was involved in a drunk driving accident, and that a sixteen year old girl had been killed. Teresa wasn’t drunk, and was still staying sober, but she wasn’t altogether innocent either, unlike the sixteen year old daughter of Mickey who was killed. Mickey was there too, but he should have been somewhere else at the time. Mickey was supposed to have been on his way back to jail, from the “work release program” but he broke the rules and left work early, instead going Christmas shopping, and meeting Teresa and several of his kids at the mall. As Teresa, Mickey and two of the kids followed a car driven by Mickey’s sixteen-year-old daughter as she drove home, a drunk driver crossed the center line, struck the young girl’s car head on and killed her instantly.<br />Once again, Teresa and Ricky’s names were in the headlines. This time, however, they were both described, accurately, as victims of victims rather than perpetrators. Since almost a year had passed since Teresa and Ricky’s names were associated with theft, and since the newspaper needed to place either black and white “hats” on the people involved in this tragic incident to make it simple enough for the headline-reading, scandal driven public to understand, the newspapers never mentioned Ricky or Teresa’s recently checkered past history. No mention was even made in the paper of the fact that Ricky had essentially escaped from jail that night and gone Christmas shopping when he was supposed to have gone straight from work to jail. <br />Perhaps this omission was done out of respect for Ricky and Teresa’s loss. After all, Teresa had done well since her release and it was easy to sympathize with a family who broke the rules to go Christmas shopping together, especially when a one of their lives had been snatched tragically on the way home. I found out about Ricky’s “escape” after I told Kelly that I didn’t know he had been released from jail and she told me he wasn’t supposed to have been out at all. A check of our computer system, which told us who was in jail and when they were supposed to get out, told me that Ricky was “confined” in the work release center and not due to be released for months. <br />The next time I saw Teresa was several months later. She met me in my office in anticipation of her “show cause” hearing. This hearing date gave Teresa, and to a certain extent me, a chance to show the judge why Teresa should not begin serving ninety days in jail. <br />Teresa looked terrible. Her skin was pale again and the her eyes were again taking on a vacant look. I wondered if the pressure of watching a loved one die, and of being away from her new husband during this tough time, had not led her back to her old ways and her old drugs. Yet her clothes were still clean and she kept the appointment she had called to schedule with me, unlike most true users who typically showed up for court in orange jumpsuits after being found on the street. <br />I asked Teresa how she was doing and she told me that it had been “tough.” I told her that I wa sure it had been, that she had undoubtedly been through a lot of challenges as well as temptations. I asked her the one question the judge would care about: had she stayed sober so far? Teresa nodded her head. I had long ago learned to believe only the testing data submitted by the probation office to answer this question, knowing that lying and using go together. But something about Teresa’s look, even though it was unhealthy, made me believe her. I pressed her further. “You don’t look so good. Are you doing okay?”<br />“It’s my liver again,” she said. “I need to go see the doctor again.” I remembered the Hepatitis C and the needle usage that were described in the police report. I told Teresa she needed to get back to the doctor quickly, to make sure the judge didn’t do what I did and confuse sickness symptoms with drugs. I didn’t preach to her, though. How easy it would have been to do so, but how hard how hard had Teresa’s life been lately. Instead of preaching, I told her to do the one thing that would convince the judge to give her another chance. <br />“You need to get in and do a drug test, so the judge knows for sure you’re staying sober,” I told her. I knew a clean test would back up my future claim that the pale skin was from health problems and not heroin. Teresa nodded her head. <br />“I went down to Lincoln and talked about what happened to Nicki,” Teresa said. I remembered that this was Ricky’s daughter’s name, the one killed in the accident. I also remembered that, after the accident, a state senator capitalized on the headlines and the public outrage over the crash. He proposed a toughening of the drunk driving penalties and cited the tragic case as an example of the need for his new idea to send drunk drivers to jail instead of giving them a chance at rehabilitation and treatment. <br />“Who did you go talk to?” I asked. <br />“The whole chamber, or whatever, everybody who was voting on the law,” Teresa told me. I knew this meant the State Senator had summoned Teresa to give testimony before the legislature, asking her to tell them about what it was like to watch your stepdaughter die because of a drunk driver. I wondered if any of the obviously emotionally-touched would have voted for the new , tougher penalities (which passed by a huge majority) had they known that the eyewitness who described the tragedy for them was a recovering heroin addict, with a recent drunk driving conviction, who was herself the poster child for the potential of rehabilitation programs to help drug abuser get the chemical dependency help they truly needed. <br />As ironic as it was to hear about Teresa’s role as a “Mad Mother,” against drunk driving, it was my job to defend Teresa, and to keep her out of jail, so she could continue with the treatment-centered sentence that was seemingly working well for her. I knew that after I showed the judge Teresa’s (hopefully) clean drug test and told her about Teresa being called before the legislature to tell about how much tragedy comes from drunk driving, that Teresa would get another chance to continue on her seemingly-successful, rehabilitative probation. <br />After Teresa showed up for court with a clean drug test, and a description of the doctor’s plan to control the Hepatitis, the judge looked relieved. After I told the judge about Teresa’s family tragedy, and subsequent testimony before the legislature, the normally reserved, stoic judge’s jaw dropped. Whatever Teresa was doing, the clean drug test showed it was working and, after all, if the legislature was willing to listen to Teresa, the judge was not going to jail her. The judge “vacated” or eliminated the ninety day jail sentence from Teresa’s probation, meaning that she would simply have to stay out of trouble, and stay sober, throughout the remaining months of her probation to stay out of jail, at least on this case. <br />Teresa called me one day several months later and asked for my help. She told me she moved into a “halfway house” and met a friend there who needed help canceling an arrest warrant that was hanging over his head. I knew about this halfway house and knew it was a good place for people who were struggling with addiction to live while they transitioned back to life “on the outside,” away from drugs. I was glad to hear that Teresa was staying there since I knew, from talking to clients, that the only real way for real addicts to stay sober was for them to want it and for them to have a chance to talk to other addicts who were of like mind. I even knew a woman who was currently staying at this “New Creations” halfway house. I asked Teresa if she knew this person, found out that she stayed just down the hall from Teresa, and told Teresa to tell her I said “keep it up.” She told me Mickey was trying to live there too, but that for right now it was just her. She didn’t give me a lot of details but I knew Mickey was still in the picture, and evidently doing well “outside the box.” <br />Teresa and the friend who needed help met me in the office and I helped the man take care of the warrant. Teresa still looked sickly but I didn’t even have to ask if she was staying sober. After all, she was helping another human being with his problems. That told me she was staying sober since I had never met an addict who, without treatment and sobriety, really cared about anyone but himself or his supplier. The fact that Teresa was there for someone else told me she was taking care of herself and on her way back to the land of the living. Teresa told me her probation was over, that the probation officer terminated it early since she was doing well and had so many health and family problems to deal with. <br />I was happy for Teresa, knowing that no more probation meant no possibility of going back to jail on these charges, but I wondered about letting a still shaky addict, who had checked herself into a halfway house, go it alone without the threat of jail as a motivator. By this time, though, Teresa had over a year of sobriety and a support system in place. She had been before the legislature, for God’s sake, and had seen firsthand the pain that stupid, drug induced behavior could cause to innocent families. Teresa had been through so much, that maybe the probation officer was right to cut her loose. I believed in Teresa, after all, so why would I second guess a probation officer who obviously believed in her too. <br />I have not seen Teresa since that day. I heard nothing from her for over a year. As I watched countless other clients get probation, blow it by getting new charges or using drugs again, Teresa stayed silent. She didn’t call and I didn’t get any new files with her name at the top. She must have been doing well, unlike a lot of my clients, it seemed. She was a rare success story and she had pulled herself up off of the floor of the jail and back into her former life, clean and sober, helping addicts instead of supplying them. Carrying a purse instead of snatching them. Telling the legislature dangerous drunk driving is instead of shooting up and hitting the road herself. <br />I thought about Teresa when I saw hard core addicts and one day I even used her as an example to a judge who was considering whether to give a third offense drunk driver a chance at probation or a long time in jail. “Judge, this man is not the same man I met in the jail, shortly after his arrest” I said. “He is different; he isn’t blaming other people anymore, he truly wants to stay sober,” I went on. After I told the judge all about this guy, and how I truly believed in his chances on probation, I talked about Teresa. <br />“Judge, I don’t’ know if he’ll make it on probation and either do you, to be frank. Only he knows that. All I know is that one of my most hard-core drug using clients went from lying on the jail floor to testifying on the floor of the legislature after a judge gave her a chance at treatment and probation. If she can do it, he can too. All he is asking for is a chance to prove himself, just like she got.” I told the judge Teresa’s story and he gave the man probation. On the way out I told the man, “I went out of a limb for you, don’t let me down or the next time he’s not going to believe me, or you.” <br />I could not have blamed this judge if he would have rolled his eyes when I rambled on about recovery and redemption. After all, Teresa stood out as one of the few success stories I could point to amid what seemed like thousands who kept using and kept getting in trouble, no matter how many tools and chances were laid on the table in front of them. Sure there were a lot fo success story clients I could point to, but Teresa truly stood out as a seriously addicted client who turned her life around. Teresa’s case truly motivated me and I worked hard to give other people the same chances she received, thinking that everyone deserved a chance to make the same turnaround that she accomplished. <br />At first, I didn’t believe she could make it, but she proved me wrong. If I was wrong in her case, couldn’t I be wrong whenever I guessed that someone else was “too far down” to climb back up? If I was wrong about Teresa’s chances, shouldn’t I fight not just for the people I thought could make it but instead fight for equal opportunities, as our nation claimed to provide for everyone? <br />I thought so, and Teresa’s story kept me going, against the odds and the examples of blown chances that I saw every day. I watched judges, prosecutors and public defenders grow more cynical as time went on, but I tried to fight this off, using Teresa- and a few others- as examples to hold up against the thousands of failures who kept coming back to see us in criminal court. <br />Since I heard nothing further from Teresa, I assumed the best. While other clients came back to see me, assuming that I could help them get out of trouble and out of jail again, like I did the last time, she stayed away. She didn’t call me, didn’t stop in and, most importantly, I didn’t see her name typed on any new files in my “in” box. She must have been doing well, I assumed and believed. <br />One day I cut though the City Prosecutors office, past the desk of a friend I knew there who worked as a records clerk. As he told me about his new birdhouse business, I glanced down at his desk and saw Mickey’s name on a new file. “What’s this guy doing back in court?” I asked as I saw the charge of “theft by unlawful taking” typed underneath his name. <br />“Back to purse snatching again,” he said, “just like before.” He smiled sadly, shaking his head, at how stupid the (alleged) crime was described in the police report. “Caught on videotape in the grocery store.” <br />“With a woman?” I asked, knowing the answer and feeling the posture being sucked out of my shoulders. “Teresa?” <br />“Yep, that’s her. Wearing a blond wig,” he said.<br />“But she hasn’t called me?” I protested, probably taking on the look of that kid who asked Shoeless Joe Jackson, “say it ain’t so?” in the midst of baseball’s game-rigging tragedy. <br />“That’s probably ‘cause she’s in jail, in Iowa, on felony theft and possession charges,” he said. “She’s not coming back to Omaha for a long time.” <br />I returned his smile, but only half-heartedly. I liked him, but the difference between people who worked where he did and where I did was our fundamental belief in the goodness or corruptibility of common people. He was a good person, but he was a realist who looked at people like Teresa and Mickey as being at least half empty. I had to be an idealist, however, who looked at such people as being half full and capable of great things if we only gave them a chance. <br />We both had to smile and laugh often, as we did that day, to keep the parade of horrible examples paraded before us from dragging us down to its level. Teresa’s story had picked me up, but suddenly I was reminded that while people were capable of amazing recoveries from amazingly painful circumstances, Flannery O’Connor was right. “Everything that rises must converge.” <br />I was down the rest of the day, just going through the motions. Luckily all I had were “traffic” clients to represent, whose cases were mind numbingly routine, and no one went to jail because of my mood. I told myself to forget about Teresa, that there were plenty of other success stories to focus on. I reminded myself that one of these people was now rumored to be dead, amid mysterious circumstances, and I wondered if perhaps Teresa was lucky to be in jail, where she was away from drugs and close to a doctor, since by now she must be much closer to death. <br />I took the edge off of my attitude that night by consulting with my long time legal advisor, Samuel Adams. He was both a brewer and a patriot, and the flavor made in his name washed bad memories and broken promises away better than my own mind could. I stopped at two, though. As good as the beer tasted, I was profoundly aware, through my job, of the dangers of numbing yourself to excess with substances, whether illegal or advertised. <br /> The next morning I was late for court. The judge yelled at me and the other public defenders pretended to care as I vented Teresa’s story to them. I couldn’t blame them. They each had heard hard luck stories all day long and knew that I was just letting off steam after a particularly big letdown. <br />I prided myself on being the type of lawyer who tried to crawl inside the skin of my clients, who got to know them and feel their pain or their predicament so that I could accurately describe it to a judge or jury at a trial or sentencing hearing. None of my colleagues had ever cried in court the way I had several times, except one woman who cried her way back to the office after being yelled at by a judge. I knew a lot of people quietly laughed at me, standing up in my used clothing store suit, trying to hold back tears as I told the judge about my client’s sad story. As laughable as my style could be, it usually worked. I knew that just as people laughed at me, they also respected my sincerity, and my sometimes manufactured idealism. My own style was more like a roller coaster than a merry go round. I felt my client’s pain and their successes, probably too much for the low rate of pay they gave us. But I also felt immense pleasure at seeing my clients do well, at being hugged by them or even thanked occasionally. To me, being a p.d. was not just a job, it was an adventure. I knew I couldn’t afford to stay in this job for long, so I tried to savor every moment, before financial reality set in and idealism let me down. <br />Teresa’s story was truly an adventure, but afterwards being a public defender felt much more like just a job. I wasn’t ready to get off of the roller coaster yet, but the safe, predictable merry-go-round, of a well-paying private sector job or a less emotionally-invested style, personal looked a lot more appealing. I wasn’t ready to give up on human nature, or on my own idealistic outlook yet, but the glass was starting to seem more empty than full, the absence more real than the presence. <br />Teresa still hasn’t called and i take that as a good sign. If she were the way down again, she would be reaching out to her old friend, her public defender, the way a desperate, drowning person would reach out to (and pull down) a person who tried to help. In jail, you can always call your lawyer, but Teresa has never called me. I had no real reason for this belief, but something made me believe that she didn’t call out of respect for me and the way I tried to help her, without any real success. It would have been sickening to have to hear how her life fell back into after I had seen her put it all back together so tirelessly. <br />I still wonder about the diamonds, though. Were they real or fabricated? Part of me still believes in fairy tales like these, but I know there are no diamonds waiting for Teresa to dig up and live happily every after on when she gets out. She would have long ago sold them, shot up the proceeds and never fallen back to snatching purses if she had anything else left to lose in her life. They were simply a myth, spun by addicts who were stuck in jail and desperate for something shiny and valuable to focus on, to soothe them through their own dull gray, confined lives. I could now see clearly, as if through a half-empty glass, what I missed before. I was a fool to have ever believed in such a sparkling, senseless story.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-77185702255763400852008-03-28T17:45:00.000-07:002008-03-28T17:46:45.731-07:00MikeWhen 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. <br />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. <br />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. <br />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. <br />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. <br />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. <br />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. <br />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.<br />“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.”<br />“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.<br />“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. <br />“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. <br />“Don’t call me a jack-ass,” he repeated. We just stood there like kids on a playground, seeing who would blink first. <br />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.<br />“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. <br />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. <br />“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.<br />I asked the first question that popped into mind. “What are you charged with?” <br />“Disorderly conduct.” Mike replied. <br />“Oh really,” I said, faking surprise. We both laughed and the ice was broken. <br />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. <br />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.” <br />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. <br />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. <br />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. <br />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.<br />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.<br />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. <br />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. <br />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. <br />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.” <br />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. <br />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. <br />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.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-25763900945767572842008-03-28T17:44:00.000-07:002008-03-28T17:45:34.622-07:00ChristineWhen I represented Christine the first time, she was accused of throwing a pizza pan at the manager of the Italian restaurant where she worked. The fight started when the manager told Christine that they needed her to stay at work for an extra hour, to accommodate the rush of take-out orders that were coming in on a busy Saturday night. Christine got mad and, as she told me, threw the pizza pan “in the general direction” of the manager, but didn’t mean to hit or hurt her. Luckily, the pan missed the fleeing manager, but hit a table next to her. <br />When a different manager (the first one retreated into the office) told Christine she was fired and would have to leave, Christine “cussed him out” and then had to be escorted out of the restaurant. Once she was outside, Christine walked across the street and screamed things like “this isn’t fucking over” and “I’ll fucking kick your ass, you bitch.”<br />When the police pulled up in front of the restaurant, Christine was still across the street. She even waited patiently while the police interviewed several witnesses, all of whom pointed at her as they spoke. After awhile, the cops walked over, asked Christine who she was, and ticketed her for assault and battery and disorderly conduct. She told them the ticket was “fucking bullshit” and that she <br />I knew, even before I met Christine, that not even Clarence Darrow could save her from a disorderly conduct conviction. Disorderly conduct meant “fighting, threatening or violent acts,” so even if I could prove to the judge that Christine “didn’t mean” to throw the pizza pan at anyone, the prosecution could prove she was being disorderly about ten different ways for the various things she did and said that night, in front of many witnesses in a busy restaurant.<br />The assault and battery charge, however, was a different story. There wasn’t much to fight about- since “assault and battery” meant putting someone in “imminent fear of bodily harm”- but there was at least something to fight at trial, if need be. I knew, from talking to Christine and from reading the police reports, that she was in trouble. Since each charge carried exactly six months in jail, she was facing a bench, or judge, trial only. The judge she was stuck with, whoever it would be, would be understandably upset about a person throwing things at their employer. Besides that, what judge would want to upset the owners of a restaurant chain mad, especially in an election year? I knew that if the restaurant owners were “out for blood” the prosecutors, who were also led by an elected official, would blow this case way out of proportion. <br />Even though Christine’s aim wasn’t very good, she could still be looking at some jail time, perhaps even several months worth, unless I could some way to “push back.” Throwing yourself on the mercy of the politically sensitive court, who would be listening to the politically motivated prosecutors was like sending your troops into a battle you knew they wouldn’t survive. I would have to scratch and claw for a way to fight these charges to create an “insurance policy” for my client, in case things got ugly for Christine as I knew they could. <br />I worried about the trial and arrived early for court to prepare for it. When I called out the name of the manager/victim, I recognized her as someone I knew from the few times I’d eaten in the restaurant. Instead of being “out for blood” and upset as I’d feared, she was calm and collected. She told me how she felt sorry for Christine, how she knew Christine had not had an easy life. She even described Christine coming to work one year shortly after Christmas and telling her co-workers how she hadn’t received any presents. The manager took up a collection for her and managed to raise enough to buy a night in a hotel for Christine, so she and her friends could swim in the pool and have a holiday party. When I asked the manager whether she minded if the prosecutors dropped the assault and battery charge, she said “no, I just want her to get the help she needs.”<br />Having heard that, I knew half of Christine’s battle was over. Because the victim of the assault was not demanding jail time, and didn’t much care what the sentence would be, the prosecutors were probably not going to recommend jail either. They had a lot of cases to deal with that morning and they knew that my client would be more likely to plead guilty- and save them from having to conduct a time-consuming trial- if they recommended a sentence of either probation or a fine. <br />In the strange world of County Court, the victim of a crime held a lot of power over whether the case went to trial or resulted in a plea. On the surface, this might appear to be proper but it only haphazardly resulted in justice and frequently created injustice. The problem is that prosecutors- at least the ones I dealt with- are driven by politically-motivated bosses who either like their relatively high-paying civil service jobs or else use their offices to further their own political careers. Because of this mindset, they respond to “hot victims” who threaten to call the local “if it bleeds, it leads” television news station unless their demands for swift punishments are met. <br />Occasionally, victims’ demands were reasonable, but the reality is that the louder you complained to the prosecutors, the harder they would push to make sure the defendant went to jail. If you didn’t much care, either did they. If you punched someone, the punishment depended less on what you did than it did with how mad they were afterwards. This was not a recipe for justice since the prosecutors reacted to their victims instead of acting according to the severity of the crime that was committed. <br />Christine was lucky. Because the victim of her crime was not pushing hard for jail, the prosecutors were saving their time and energy for those cases in which the victims were upset and “out for blood.” I didn’t mind this in Christine’s case, since it was my job to minimize what would happen to her- but I knew that tomorrow this political wind could easily be blowing in the other direction. Tomorrow I could be in the same courtroom, with an even less culpable defendant and the same prosecutor could easily be demanding jail time, afraid of going against the victim’s wishes and possibly getting into trouble with the boss. <br />Of course, getting the prosecutors to recommend a particular sentence was only half of the battle. Christine still had to get past the judge. Judges were not bound to accept plea agreements and in County Court, we rarely had the time to speak to judges “off the record” to get a sense of whether they would go along with the prosecutor’s recommendation of the or not. In Omaha, County judges had it good. They were paid six figures, rarely worked more than thirty five hours each week, and had excellent retirement packages to look forward to. Of course, like most government employees, they constantly complained about the work, even to the Public Defenders who typically worked twice as hard for one third of the money. <br />The only thing a County Judge in Omaha had to worry about was a retention vote. Judges were not elected, but were appointed by the governor. Every four years they were subject to a “yes or no” vote, which was easy to survive since “losing” meant that more than half of the voters had to check “no” beside your name. If you managed to avoid controversy and thus kept your name out of the papers, you didn’t ever have to leave. <br />How do you avoid controversy as a County Judge? It’s pretty simple, really. You keep the conservative, crime control minded newspapers happy and you get tough on crime, especially when any politically powerful person is watching. You don’t stick your own neck out, even if you are simply following the law, and you rarely put yourself in a position where the press can characterize you as “soft on crime.” <br />Of course, the job is not any fun if you have to work hard and stay late. If you start being too “tough on crime” less defendants will enter guilty pleas and will instead start demanding time-consuming trials. How do you resolve this dilemma and keep your job easy while also keeping your job? Simple. You act tough and thorough toward criminal defendants when politically powerful people are paying attention and you accommodate criminal defendants who save you time by pleading guilty when no one is watching. If you are willing to be Machiavellian, you punish anyone who dares to assert their right to go to trial. That way, attorneys know that if their clients plead guilty, (and save you time) you’ll be easy on their clients. Of course you also have to show them what happens when they take up your time with a trial. You let them know that you will find their clients guilty and show them that the punishment inflicted after a trial is much greater than after a plea of guilty. Pretty soon, plea bargains are being struck and you are going home early. “The easiest job I ever had”, was how one judge, who left Enron to work in Douglas County Court, described it. <br />Christine was lucky. The judge she drew on her trial date was not Machavellian, lazy or even mean. This judge wouldn’t stick her neck out very far to impose a just sentence when the prosecutors went too far, but she also rarely departed from the prosecutor’s recommendation, even when the facts called for a stiffer punishment than was recommended. After I spoke with Christine and we walked up to the bench to enter the plea, I was pretty sure that she would be walking out the door without her hands cuffed behind her back. <br />Like every case, Christine’s began as the judge read Christine’s name, case number and charges into the record. The prosecutor then stated his name and position and then described the plea bargain Christine had previously agreed to. I then stated my name and confirmed that what the prosecutor said was indeed true. The judge then described the possible penalties, informed Christine about the rights she would be giving up and retaining through a plea of guilty. Finally the judge said those words that all County Court judges say and that scare every criminal defendant: “Do you understand that I am not required to adhere to the recommended sentence and that I can impose the maximum penalty here today?” The judge then asked Christine how she pleaded. Like many clients, Christine looked at me first and silently mouthed “no contest” asking me if she was saying the right thing. After I nodded, she said it, and the judge said “factual basis.” <br />Christine exhaled, as if the hard part were over, but I knew that even though her “speaking part” was behind her, the hard part of her case was just beginning. By asking for a “factual basis,” the judge was asking the prosecutor for a brief description of the facts so that she could determine whether a crime had truly been committed. Of course, another purpose- in a busy misdemeanor court setting- was so that the judge could decide what the appropriate punishment should be. I was nervous for Christine because I knew the police report contained a lot of information that could cause the judge to ignore what the prosecutor and defense were asking for and throw Christine in jail. I knew the prosecutor would minimize what happened as he summarized the facts that brought us here. After all, he would have looked lazy and lenient if he requested a fine and then described a full-fledged fiasco. However, I also knew that several things could go wrong. Judges usually asked to hear from victims when they were present in court so that they could not be accused in the press of every judges nightmare, being labeled as “soft of crime” or insensitive to victims. I knew that while the manager would ask for leniency for Christine that the judge might also ask her to describe what happened. If she told the whole story, the cuffs might just come out and around my client’s wrists. While I was afraid of this, I knew the chances of it occurring were slim. The prosecutor was not about to say anything that would make the judge think people nearly got hurt. The courtroom was busy and the judge would trust the prosecutor to bring any bad facts to her attention. Since he didn’t, she wouldn’t take the time to hear from the victims since he made it sound as if this were a minor misunderstanding. <br />What I was more afraid of was the police reports. With just a quick glance, the judge could read the report’s summary and see that someone nearly got hurt and that only my client’s bad aim prevented this. I tried to maintain a poker face, but I carefully watched the judge mark the reports by writing on the summary page. All she would have had to do was read one or two sentences to see that neither side had told her the truth about what happened. <br />It was a busy day, however, and the judge had plenty of other cases to deal with. She didn’t read the report and Christine didn’t go to jail. The judge followed the recommendation and fined Christine $50. Luckily for Christine, the truth had not come out and the person she aimed at didn’t push back very hard when it was her turn to throw something back. I told Christine how lucky she was, said goodbye and moved on to other cases, hoping my words might teach her a lesson she should have learned in court. <br />Two weeks later, I saw Christine’s name again, typed on a new file folder the secretary placed in my “in box.” This time she faced charges of drunk driving, speeding and disorderly conduct. When I reviewed the police report I read about Christine speeding through an intersection several blocks from my own house. The police followed her, clocked her at twelve miles over the speed limit, and then pulled her over. As I read the report, my job was to look for things to fight against, for reasons to go to trial, or for problems with the state’s case against Christine. <br />Police officers almost always wrote their reports so that it appeared, on the surface at least, as if the state’s case against this or that drunk driver was rock solid. What could clearly be seen as slight weaving of a vehicle on a videotape would be described as “crossing over the center line on several occasions” in a report. When the Supreme Court ruled that slurred speech and alcohol odor were pertinent factors contributing to a lawful arrest for drunk driving, every police report began describing these sights and smells at every stop. Since my job was to “police the police,” I had to look beyond the officer’s conclusions to the facts and then look what an excellent defense attorney described as the goal of every good defense lawyer: an alternative explanation consistent with innocence. <br />I saw several problems with the state’s case, but also several problems for Christine. The alcohol content of her breath was just barely over the legal limit, but some other things came out of her mouth that night worried me deeply. Like many of my clients, if she had kept her mouth shut, I could have done much more to help her. Since she didn’t, I wasn’t sure what would happen. According to the report, as Christine was being taken to the police station for a breath test, she said, “this is fucking bullshit” and “if I was a nig***, I’d sue you for prejudice.” <br />Even after I read this in the police report, I still didn’t think the state had much of a case against her. I don’t like people who use words like this, but I have to defend my clients even if I don’t like what they say or do. As much as I hate talk like this, I am even more repulsed at the possibility that a country that values freedom of speech could make such speech a crime. While we rightly criminalize shouting fire in a crowded theatre for the possible injury it could inflict on innocent people, if we criminalize the use of certain offensive words, we ignore our own first amendment right to free speech. As is often said, “I hate what they say, but I respect their right to say it.” <br />While the prosecutors characterized Christine’s use of the “n word” as disorderly conduct, I knew they would have a hard time convincing a judge of this. Disorderly conduct meant “fighting words” that would “incite an immediate breach of the peace” not stupid, racist comments that no one wanted to hear. Since Christine was alleged to have said these things to two trained officers while she was cuffed in a patrol car, a conviction was unlikely. Even if she was convicted of this charge at trial, she stood a good chance of getting her conviction overturned on appeal. <br />The case looked weak and winnable to me on the drunk driving charge as well. Nebraska law requires that any margin of error in the breath test be viewed in favor of the defendant. In other words, since Christine’s test was just slightly over the legal limit, I would argue that the margin of error made her test too close to call, especially when the standard of proof was beyond a reasonable doubt. <br />Knowing that there were several things to talk about at trial, I knew I could either use these issues to strike a favorable plea bargain for Christine or else try to win on these issues at trial. Since the speeding carried only a fine, with no possibility of jail, I hoped to keep Christine out of there, one more time. <br />There was only one problem. Christine drew Judge Luke for her trial. He was fair, but he was also black. Arguing that Christine should walk away from this incident- where she used the most hateful word a white person could use against a black one- with only a speeding ticket would be asking a lot of Judge Lowe. Still, I knew Christine stood a good chance of winning on appeal as long as I made a good record of the exact words that were said and the tests that were taken. As uneasy as I felt arguing to an African-American judge that my client’s use of the “N word” was not worthy of punishment, I had a job to do and an important role to play. Christine was undoubtedly wrong to use this word but it would be even more wrong to allow the government to criminalize its use. I hated her use of the word but loved being the one to defend her right to speak her mind. <br />When I walked into the courtroom, the prosecutor waved to me and pointed to the paperwork that made up her case against Christine. “Does she want to plead to the D.U.I?”, she asked. “I’ve got my officers here.” <br />“No, that’s going to be a trial.” I told her. “That test is way too low and I don’t think you can get a disorderly out of that either.” The prosecutor- a woman who was burned out on her job and taking only the path of least resistance toward the vesting of her retirement in a few years- gave me a pouting look as she sat silently. Drunk driving cases made for very time-consuming trials and this prosecutor, who made more than twice as much money as I did, didn’t want to work any harder than she had to. Knowing this, I added “but she’d plead to a willful reckless driving right now.” <br />I called out Christine’s name and signaled to her to meet me in the hallway. I could tell by the look on her face that she was scared. “The cops are both here,” she told me, as if this meant the end of her hopes. I told her this wasn’t a surprise, that she should still have a trial and that she had a good chance of winning. As I was telling her that even if she lost today she could appeal the case and possibly win later on, the prosecutor walked up behind us. <br />“How about this,” she said, motioning me away from my client so we could talk alone. “Your girl said some pretty bad stuff that might land her in jail if we have a trial. You might be able to win later, but you might lose too. How about if I send the officers home before she pleads and I don’t say anything about what she said when he asks for a factual basis.” <br />“Do you mean you push this case through quickly and you talk about that one word at all?” I asked. <br />“I think if he hears what she said, he’ll put her in jail,” the prosecutor said and I knew she had a point. “But if she pleads he won’t hear that word from me,” she continued. “Of course, if he finds out on his own, he might still put her in jail. But he won’t hear it from me.” <br />I didn’t know what to do. As much as I wanted to have a trial, I knew the judge had a lot of power and if Christine could not come up with some money for an appeal bond, she might have to sit in jail while I argued her appeal. I trusted the prosecutor more than most and knew she would keep her word about not uttering “the word.” However, I also knew that Judge Luke was very unpredictable. He went to a good law school but he also had more “street smarts” than most judges. If he thought the prosecutor was keeping something from him, he could ask her for the police reports, as a factual basis for the plea, so that he could read them for himself. If he did, I knew Christine would be in trouble. <br />Torn between my own lawyer sense that pushed toward a resolving these legal issues at trial and my own “street smarts” that pushed toward damage control and keeping this damaging information away from the judge, I asked the prosecutor one more time. “You sure you won’t bring up the word “nigger” at all?” She nodded and I told her I would ask my client what she wanted to do, mumbling all the while about words like this not even being a crime.<br />I wanted a trial, but it was Christine’s life and her choice. I am ethically required to tell my clients about any plea offer made by the prosecutors for exactly this reason. They get to choose, but I get to advise them about which choice to make. When I told Christine about this offer she asked me the question I didn’t want to hear. “What would you do?”, she said. <br />I gave her my usual answer. “It depends on how you want to live your life. Do you want to take the safe path or take a chance. I think personally you should take the chance, but if you want to take the safe way, the prosecutor won’t say anything about what you said to the cops. That alone might keep you out of jail. But remember, even if you plead and the prosecutor keeps quiet about what you said, the judge can still find out about it, if he looks for it.”<br />Christine was scared and the solutions I offered her all involved maybes. Maybe we would win at trial, maybe we would win on appeal and maybe the judge wouldn’t figure out what she said. I wished that it weren’t so, but I couldn’t read the judge’s mind or predict the future. I had to guess and guesses always meant taking chances. <br />\Like most of my clients, Christine just wanted to stay out of jail and get this over as quickly as possible. “I just want to get it over with today,” she said. “If they won’t talk about what I said when I was drunk, I’ll just plead to it.” <br />“You understand that he might find it anyway?” I asked her. “It could still come back to haunt you, even if you plead to it. You could still do up to sixty days in jail on the drunk driving charge. You know that, right?”<br />Like most criminal defendants, Christine was adept at math. I had told her that disorderly conduct carried up to six months in jail Sixty days maximum didn’t sound that bad, especially when the prosecutor would be telling the judge to sentence you to probation instead of putting you in jail. <br />As Christine and I walked up to the bench so she could enter her guilty plea to the drunk driving charge, I tried to maintain a poker face. I tried to act as if I wasn’t concerned in the least about what was in the report, as if this were just an ordinary drunk driving case. I hoped the busy judge would rush the case through quickly, just as Christine’s last judge had. I knew if he looked deeply into the case, or at least past the prosecutor’s and my own abbreviated, mutually beneficial version of the facts surrounding Christine’s arrest, things could go downhill quickly. <br />Judge Luke was very unpredictable. He might be in a hurry and rush through a case or he might hold up an entire courtroom to lecture a person about a seemingly trivial point if the fancy struck him. He might rush Christine’s case through quickly or he might sense that we weren’t telling him something. If you were a criminal defendant, you always wanted to go last in Judge Luke’s courtroom. If he had an audience, he might relish the chance to be on stage and to entertain them at your expense, or for your benefit, depending on how you looked at it. <br />When Judge Luke asked for a factual basis, the prosecutor did just what she promised. She said that Christine “acted a little disorderly toward the officers” but didn’t say anything about any racist language. I knew she was trying to satisfy the judge’s curiosity about why the discorderly conduct charge was added. If she had said nothing, he would have surely looked so she was trying to slide this information by him, just as she had promised to do. <br />Christine stood uneasily before the elevated judge as he reached out his hand to the prosecutor. “Do you wish to have the police reports marked?”, he asked. The prosecutor said yes, since that was the normal practice, but I saw her lay the stack of papers nonchalantly on the bench as if she were telling him that there was nothing important contained in them. She truly lived up to her end of the bargain and, as I held my breath, I held her in a little higher esteem for sticking to our agreement, above and beyond the call of duty. <br />The courtroom buzzed quietly with whispers, as the observers spoke with their lawyers or the police officers talked quietly among themselves. Rather than calling for complete silence, as some judges did, Judge Luke allowed people to talk, but could also command them to listen to him if he were to raise his powerful, quick voice. I heard this background buzz as I watched the Judge grasp the reports that described Christine’s stupid, drunk, racist comments. I watched out from the corner of my eye, as if there were nothing to hide, but I hoped for the quick exit, the swift passing of paper from the judge to the bailiff that would make all the difference to my client. If he wanted to move quickly , Christine would walk away easily today, but if he took just a few seconds to read what the officers had written, all bets were off and the judge would be on stage, with a lot to talk about. <br />The judge picked up the stapled papers, attached an exhibit sticker and filled in its blanks. I waited for him to pass them to the bailiff and to follow the recommendation of probation that was commonplace for a first time drunk driver. But he didn’t grant my wish. He slowly opened the reports and glanced at the words quickly. I was worried that perhaps he had seen the hateful words, but I was also hopeful that he couldn’t have taken in much information in the quick glance that he gave the papers. His eyes looked up to meet Christine’s as he let the papers fall back closed. The courtroom still buzzed, but the prosecutor, the defendant, and the defense attorney all stood silently, hoping that this black judge wouldn’t see what none of us wanted him to see. <br />“Young lady, I see that you got more than a little disorderly with the officers,” the judge said, scolding the prosecutor with a glance. The courtroom quieted, sensing that the judge wanted their full attention. I knew the jig was up, that the judge had seen the word I didn’t want him to see and that Christine would be handcuffed soon. The judge paused, then said, “I see that you told these officers that ‘if you were a nigger, you’d sue them for prejudice’, is that what you said?” Christine looked at her feet like a child caught red-handed. The courtroom was dead silent. <br />I frequently complained about Judge Luke’s unpredictability, but I had to admit the man could be dramatic when he wanted to be. People often told them he should be on t.v., that he had a way with words, and I knew what they meant. Today was no exception. “You might want to be careful about how you refer to African-American people in the future, young lady. You never know when you’re going to end up in front of one, one who has the power to put you in jail or send you home.” <br />The black-robed judge paused for at least fifteen seconds, letting this truth sink in to Christine’s deeply bowed head. I felt like minutes until he spoke again. “What I’m going to do, though, is give you a chance,” he said, pausing again to leave the audience wondering what this chance would be. “I’m going to go along with the probation, but I’m going to test you for drugs and alcohol. You’re going to control both what comes in your mouth and what comes out of it. Do you understand?” <br />Christine said, “Yes I do, your honor, I understand” meekly, like a beaten down recruit on the second day of boot camp. I knew Christine was getting probation and that she had already learned a lot. I also knew that Christine was not only broken down, she was also down and out. She had picked up two misdemeanor cases in just a few weeks. If she could not stay out of trouble for the next nine months, she would be in violation of her probation and without a doubt going to jail. I knew he sent her a strong and dramatic message but I didn’t know if she would be able to meet it. I could only hope and of course warn her about what would happen if she didn’t change her direction right now. <br />Christine was sentenced to probation and, as I walked her to the probation office, I warned her repeatedly about making sure she didn’t give Judge Lowe another reason to throw her in jail. “He won’t forget about you, after what you said, so if you blow probation, it won’t matter what I say to him. If you screw this up, he’ll hammer you.” Christine swore that she learned her lesson and promised to do everything he asked her to do. <br />I moved on to other cases and temporarily forgot about Christine in the rush of current clients, each with their own complicated legal and personal problems. Several months later, I saw her name again. It was typed on a notice sent to me telling me about a violation of probation hearing. Christine had only met with her probation officer once and had then blown off all the requirements. It was as if she either didn’t care about finally going to jail or as if she were out of control. <br />At the violation of probation trial, there was nothing for me to argue. Christine had violated her probation in at least eight ways and the prosecutors had only to prove one violation to convict her and allow the judge to sentence her to up to sixty days in jail. In the hallway, before she pleaded guilty, Christine told me she wanted to go to treatment for alcoholism. I hoped it was true and told her I would ask the judge for another chance. The look on her face this time was different. She seemed to be at the end of her rope. I became very familiar with “sentencing day converts” as a Public Defender as I watched people make false promises just to stay out of jail. The more people lied to me about wanting to go to treatment or about stopping the shoplifting or about doing well on probation, the less I believed in people in general. <br />But for some strange reason, I believed Christine. Her eyes told me she was serious about going to treatment, and my eyes read the letter she had from a treatment center that accepted her. I knew the judge wouldn’t give her that chance though, and I couldn’t blame him for this. I was her defender but he had to judge her. He had already been soft on her despite her racist language and asking for another chance felt like asking for too much. <br />It was my job to ask him for what my clients wanted or needed so I did it anyway. I knew the judge wouldn’t listen if I whined about what a rough life Christine had lived. I knew he heard this line every day. Instead, I cut right to the chase. I said that Christine didn’t deserve another chance but that she truly needed treatment. “She’s like water for chocolate,” I said. “She’s ready to go there and they have a bed with her name on it.” I hoped that if the judge didn’t listen that perhaps Christine would still go there after she got out of jail. <br />As expected, Judge Luke shook his head no. He treated us with respect, but he rightly said that actions had to have consequences. He sentenced Christine to 30 days in jail. She howled as they led her away in handcuffs. I followed and told her she could still go treatment when she got out of jail. She didn’t tell me whether she would go, she just bawled, hard like a lost child. <br />Although I expected to, I never saw Christine again.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-11931639208602043442008-03-28T17:43:00.000-07:002008-03-28T17:44:34.384-07:00SamSam’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. <br />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. <br />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. <br />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. <br />“How are you holding up in here?” I asked. <br />“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.” <br />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.” <br />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. <br />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.<br />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. <br />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. <br />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. <br />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.<br />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’.”<br />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. <br />“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.” <br />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. <br />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. <br />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. <br />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? <br />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. <br />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. <br />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? <br />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. <br />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. <br />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.” <br />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.”<br />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. <br />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. <br />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. <br />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. <br />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.” <br />“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. <br />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. <br /> “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. <br />“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.”<br />“That sounds pretty good,” Sam smiled. <br />“You can’t drive at all for fifteen years,” I repeated. “You think you can live with that?”<br />“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.” <br />“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. <br />“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.”<br />“I think he probably will, but once you get there, you won’t be able to drive away for a long time.” <br />“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. <br />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. <br />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. <br />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. <br />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. <br />“Mike Tesar wants you upstairs”, she said. “They need you to come up to help a guy withdraw his plea.” <br />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. <br />“Withdraw a plea?” I asked. “Why do they need to do it now?” <br />“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.” <br />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. <br />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. <br />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. <br />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? <br />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. <br />“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.” <br />“What’s going on?” I asked anyone and everyone.<br />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.”<br />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.”<br />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. <br />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.”<br />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.” <br />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. <br />“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. <br />“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. <br />“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. <br />“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.” <br />“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.” <br />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. <br />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. <br />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. <br />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.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-78348246209441029512008-03-28T17:42:00.000-07:002008-03-28T17:43:29.907-07:00BennieI was just a month into my legal career when I first encountered Bennie. Actually, I read all about him before we met, his case being an “inherited” one that was passed to me when his original public defender left the office to work in private practice. As I reviewed the file, just before Bennie arrived at his appointment, I read his former attorney’s notes about a man who shouted “that’s bullshit” to the judge at his arraignment, resulting in a thirty-day jail sentence for contempt of court. Bennie was now out of jail for that outburst, but he still faced the original charges of flight to avoid arrest, reckless driving, possession of marijuana, and driving under suspension. <br />The police report described Officer Kiley seeing a four-door Chevy Blazer make an illegal turn through a convenience store parking lot. When the Officer turned on his red overhead lights to pull the car over, it raced away from him, through traffic, and got away. The officer announced over the radio that a “black male” in his “mid thirties”, with a “medium afro” in a dark-colored blazer was last seen westbound on Lake street. The officer even described the license plate number as either NVG or NVB followed by 917. <br />Two hours later, according to the report, a different officer, Garrido, saw Bennie driving a blazer that “matched the description” announced over the radio hours earlier by Officer Riley. Officer Garrido pulled Bennie over, asked for his license and discovered that it was suspended. Officer Garrido then arrested Bennie, searched his car and found marijuana. When Officer Kiley arrived on the scene, he “positively identified the vehicle as the same one involved in a flight to avoid arrest two hours earlier.” <br />Case closed, right? As I speed-read Kiley’s report the first time, I thought so too. But as I read further, I saw that many of the conclusions Kiley reached didn’t make sense. Kiley wrote about chasing a “dark-colored Green or Blue Blazer”, but Bennie’s blazer was described as “green and tan” in the fine print of the police report. Kiley wrote about seeing a “black man, medium afro, in his thirties,” but that description applied to most of the population in that neighborhood at that time of night. Bennie was 34 and seemed to fit the description, but his hair was described as “braided” on the booking sheet. Kiley wrote that he initially described the license plate over the radio as “NVG or NVB 917” but Bennie’s license plate written as was “NOV 914” on the police report. Kiley wrote that when he asked Bennie where he had been two hours earlier, Bennie said he “couldn’t recall.” Kiley obviously concluded this was than a guilty person’s incriminating admission, but I knew this response may instead have been a street smart person’s conditioned response to a cop’s attempt to finger him. Each inconsistency made me question Kiley’s conclusions and made me wonder what Bennie would have to say at his appointment. <br />Bennie seemed to look at me a little suspiciously when I called out his name and asked him to follow me back to my office. We were roughly the same age, but while I had grown up as a white man in a small Nebraska town, he had grown up as a black in the state’s largest city. While I had visited Nebraska’s penitentiary one afternoon with my dad to visit a client, Bennie had been there for a couple years while in his twenties. We didn’t seem to have much in common at first. <br />When I told him that I thought the police report “seemed a little strange” Bennie perked up. “I’m telling you, they got the wrong guy,” he said, as he told me how he had been with two friends at a woman’s house until he was pulled over by Officer Garrido on his way home. Bennie gave me his friends’ names, but he also said they probably wouldn’t come to court, to testify about being with him when the police chase occurred, since they both had warrants for their arrests. <br />While I had reason to doubt Officer Kiley’s conclusions in the police report, I also had a reason to doubt Bennie’s alibi. He seemed honest enough to me, but he also seemed a little more guarded than a truly innocent man would be in this situation. It was as if he wanted to give me as little information as I needed about where he had really been when Kiley chased a dark-colored Blazer through Bennie’s neighborhood. I also doubted Bennie’s alibi since his former attorney’s notes- written in a jailhouse interview shortly after the incident- said that Bennie “wanted to plead guilty as soon as possible.” I didn’t know if this meant that Bennie wanted to get this case behind him quickly or if he truly had something to admit to. I didn’t know quite who to believe, in other words. <br />At this point I knew that I didn’t know much and that I needed to find out who was lying to me. Bennie professed his innocence throughout the interview and I wondered if perhaps he had to be able to trust me enough to tell me details about that night and where he had been. He proceeded with caution, as I asked him questions, and I wondered if he was worried about what his wife would think about him being at another woman’s house in the late night hours of a Friday night. Maybe Bennie was guilty, or maybe he was just telling me he “couldn’t recall” just as he’d told Officer Kiley that night. <br />I told Bennie I wanted to subpoena that tapes of Officer Kiley’s radio broadcast. By listening to them, I could hear exactly what Kiley said instead of just believing what he wrote about it in his police report. I also told Bennie that I would file a motion to suppress the stop of his vehicle. I told him I didn’t think we would win, but that we might and that we could win a lot of good information from the officers along the way. I expected Bennie to be impressed by my enthusiasm, but he wasn’t. “How long’s it gunna take?” he asked. I wondered why he was in such a hurry and then glanced at the bond information that his former attorney had written in the file. Bennie had already told me he was unemployed, so I was shocked to read that he had posted $5000 in cash to get out of jail. No wonder he was in a hurry. <br />I told Bennie I needed to take some pictures of his Blazer and discovered how this unemployed man raised $5000. The Blazer, he told me, was at Mid-City Pawn in downtown Omaha. Bennie needed a good lawyer to help him in his case, but he also had more pressing concerns, such as kids and a wife at home. He was without his wheels, without his money and without a job. I knew he didn’t want to go back to jail, but I also wondered whether his initial wish to “plead guilty as soon as possible” was an admission of guilt or a wish for certainty. By pleading guilty he could fallback into a world he knew, jail, and know exactly when his jail “out date” would be. <br />I was worried about Bennie. He had a bad record, a decent alibi with no available witnesses and a lawyer who cared but who was not yet experienced enough for prime time. Like Bennie, I knew the system was far from perfect and like Bennie I knew I had no choice but to press on and hope for the best. <br />I felt better when I listened to the tape recordings of Officer Kiley’s radio broadcast. As I expected, he “exaggerated” in his written report when he described what he thought he said over the police radio. In the report, Kiley described announcing that a “green or blue” blazer drove away from him. What he actually said, however, was “black or dark blue.” This helped Bennie’s case tremendously I thought because I allowed us to not only point out that Officer Kiley’s initial description didn’t match Bennie’s vehicle and also that Officer Kiley’s memory was not infallible. “After all,” I could argue to the jury, “if Kiley forgot what he said, perhaps he also forgot what he saw.” By itself, this inconsistency wasn’t much, but if I could combine it with other problems, perhaps it would add up to a reasonable doubt. <br />I transcribed the rest of the audiotape and prepared for the upcoming hearing on Bennie’s motion to suppress, or exclude from evidence, the results of Officer Garrido’s traffic stop. If it was successful by itself, this hearing would eliminate the State’s entire case against Bennie since all the evidence flowed from it. I knew our chances of winning this way were slim since the judge would decide whether Officer Garrido had a reasonable suspicion that Bennie was involved in criminal activity. Kiley’s description of Bennie’s vehicle wasn’t perfect, but it did describe a dark colored man in a dark colored blazer with a license plate number that was similar to Bennie’s. I knew the real fight was whether the state could prove beyond a reasonable doubt that Bennie was the driver, not whether the officer had a reasonable belief that Bennie might be the driver. <br />Our real goal in this motion hearing was to get the officers to commit to one version of events under oath. The way to ferret out who was telling the truth was to get them to talk about it several times so that any inconsistencies would emerge in the telling and retelling of the story. While the state dealt with my question about the constitutionality of the stop or seizure of my client, I would also be testing their case and teasing their witnesses into telling me things that could help my client at trial. <br />I was excited about the getting the chance to cross-examine Kiley at the hearing. The word around the office was that he was a bit of a “hothead” and that he would be upset about having his identification second-guessed. One co-worker even told me Kiley put on forty pounds of muscle in the last couple of years, and hinted that he may have had a little bit of “help” in the weightroom. I had been around guys who used steroids since high school and I knew that a side effect was a quick temper. I couldn’t wait to try out a real cross-examination and to try to see if Kiley would get as mad in the courtroom as Bennie described him being at the side of the road. I spent a lot of money- and a lot of late nights working- to get my license to practice law. It was exhilarating put the theories I’d learned in law school into practice with a live witness in front of a real judge. <br />At the hearing Bennie stood beside me. In law school, I imagined being able to sit at the counsel table for trials, but in Douglas County Court, trials were embarrassingly held right in front of the bench, with witnesses, lawyers and clients standing in front of the judge. While this wasn’t glamorous, it meant Kiley and I were only two feet apart, looking directly into each other’s eyes, as he told the judge why he thought Bennie was the person who ran from him that night. <br />Direct examination from the prosecutors was always predictable. Kiley simply restated what he wrote in the report. The prosecutor occasionally interrupted with “and then what happened?” and the story continued. The prosecutors always concluded with “and did all events occur in Omaha, Douglas County, Nebraska” to establish venue. Bennie tried to get my attention several times as Kiley talked, but I held up one finger to shut him up, as I scribbled things he said that I wanted to quote back to him.<br />When it was finally my turn to ask Kiley questions on cross, I quickly discovered that I did better when I simply talked to him, instead of reading from the questions I had written in my notes. It was my first real cross, and I was not quite ready for a murder trial, but the skills it required seemed to come more from the common sense I had learned than throughout my life than from anything my professors had taught me in the three years I spent in law school. It was just a conversation that told “the rest of the story” that the prosecutors had just started.<br />I asked Kiley if he was positive that his report was accurate it stated that he announced “green or black” immediately after the chase. He said he was “pretty sure.” I then played the tape for him and he had to admit that he really said “blue or black.” His eyes started to narrow at me when I brought out the tape recorder and they continued to until I asked him, “Now Bennie Harris’ Blazer isn’t blue or black, is it Officer Kiley?” <br />I continued like this until I got him to admit that Bennie’s blazer was two-toned and that his original description said nothing about this, that the license plate didn’t match, and that “black male, medium afro, mid thirties” didn’t really narrow down the search very much. Once, when I asked him if he had taken the time to review his reports before testifying, he retaliated with “well, I wasn’t able to take as much time as you had to prepare for this hearing.” I knew these remarks would play well to the judge who would be questioning whether this man was acting professionally or not. The more he acted irrationally in the courtroom, the easier it was for to argue that he’d been irrational in the field. <br />I struggled with some things, such as laying the foundation to place the photographs my investigator had taken of Bennie’s blazer into evidence. Judge Barrett was a little like Seinfeld’s “Soup Nazi.” He didn’t have much patience for people who stood before him who didn’t know exactly what they wanted and didn’t cut anyone any slack, no matter how long they’d been practicing law. He finally received the pictures into evidence, but I suspected he allowed me to do this more to speed things up than because I complied with the rules of evidence. I rested and in closing argument pointed to the pictures, arguing that Kiley’s conclusions, such as that Bennie and his vehicle both “matched the description” given initially by Kiley, were not supported by the evidence. I reminded the judge that it was his job to reach these conclusions and that Kiley’s many inconsistencies left him with no choice but to conclude that his anger led him to finger the wrong guy. <br />As I suspected, the judge found that Officer Garrido had enough suspicion to stop Bennie. I knew I’d gotten to Kiley, though, because Bennie’s brother told me he charged out of court after the judge ruled and and shouted “you got jacked” to Bennie’s brother, laughing in triumph. The next day, I laughed too when our investigator told me that at the bar last night a drunk Judge Barrett told him to tell me to “push” Kiley at trial, so that he would get mad again. Evidently Judge Barrett saw our point even as he decided against us. <br />Next came the jury trial. I made a mistake at this phase that I have never forgotten. Bennie wanted a jury trial and I wanted to try the same techniques against Kiley that I practiced in the suppression hearing. I wanted to follow Judge Barrett’s advice and let the jury see how mad Kiley could get. But I felt like I might have been sending my client charging off into a battle that I might not have been able to win. So I asked for the help of a more experienced attorney whom I greatly respected. Peder was worried about winning the battle and losing the war. He felt that we might win on the flight to avoid arrest and reckless driving charges but that the jury would undoubtedly convict Bennie of the driving under suspension and of possession of marijuana. Peder thought that Judge Swartz, who would preside over the jury trial and sentence Bennie upon conviction, would “max” Bennie on the driving under suspension charge because of his record, sending him to jail for ninety days and revoking his license for a year. Peder thought Bennie would be better off waiving or giving up his right to a jury trial and trying the case before a different judge in the future. That judge, the logic went, wouldn’t be as likely to “max” Bennie on the suspension charge, so he would take less risk doing things this way. Bennie persisted, however. He kept saying, “I don’t care. I can go to jail. But I aint pleading to nothing I didn’t do. And I’d rather take my chances with the jury trial.” If I had to do things differently, I would have let Bennie decide. After all, it was his life, his time and his precious right to a jury trial we were dealing with. But at the time, I thought Bennie would be better off following my more experienced colleague’s advice. I worked on Bennie, told him Peder knew what he was doing and that he shouldn’t take an unnecessary risk. If I had the chance to do it over again, I would have let Bennie choose, without “working on him.” As long as he knew the risks, they were his risks to take. <br />Bennie reluctantly signed the form waiving his right to a jury trial. I was relieved in a way because this allowed me to catch up on the enormous amount of work waiting for me, but I was also saddened. I knew there were problems with the prosecution’s case that would have been better argued to a jury, but I listened to my colleague instead of my client. As Bennie walked away, he looked at me doubtingly, as if to say, “why did I trust you?” <br />I saw Bennie again at his ‘bench” or judge trial about a month later. The judge was more understanding, but also more likely to believe the officer over the convicted felon. I was worried about Bennie’s fate but there wasn’t time to hesitate. Judge Lowe was a smoker and I knew he grew antsy on the bench and enjoyed trials, especially those that were quick and didn’t cut into his lunch hour or smoke break. Officer Kiley testified almost exactly as he had at the suppression hearing, positively identifying Bennie as the man he’d seen driving away from him. I thought he did better the second time around and worried even more. <br />Now I had one more month of experience under my belt, giving me a total of two or three month’s worth. I started cross-examining Kiley just as I had the last time, but he did much better. I had inadvertently given him a “dress rehearsal” earlier and he was panticipating my questions and lessening their impact. He grew confident, almost cocky, in his responses. Things were not looking good. <br />And then, Bennie was given a gift, which he sorely needed. When I asked Officer Kiley about whether he was angry when he saw Bennie at the side of the road, he blurted out, “Well, I knew about his terrible record and I was worried about what he might do.” Before I had a chance to respond, Judge Lowe shouted out. “Officer, you will refrain from commenting on the extent of people’s past records in my courtroom unless I ask you about it when the trial is over!” Turning to me, the judge then said, “If counsel would like to make a motion for a mistrial, I’ll certainly entertain it.” <br />I said something only slightly more intelligent than “Yeah, I want whatever you just said” and Judge Lowe said “motion granted.” The prosecutor then moved to dismiss, without prejudice, and suddenly Bennie and I were in the hallway, wondering what the effect was of what just happened. Kiley looked worried and as confused as we did. I knew we didn’t win outright because the dismissal “without prejudice” meant that the prosecutors could refile the same charges at anytime. I knew they would do this by the end of the week and that Bennie would be facing a new trial soon on the same charges. We didn’t win, we just lived to fight another day with perhaps a better outcome. <br />Because Bennie’s case was dismissed, it was filed again under a different case number. This was significant to me because I had quickly learned a universal truth about the criminal justice system. The possible plea bargain your client was offered depended more on bargaining position than on anything else. I knew that Bennie was doomed unless I could convince a prosecutor to recommend a light sentence to the judge or to drop the most serious charges. I knew they would not do this unless I could give them a good reason. I had already let one of these good reasons fall by the wayside. The best time to get a good plea offer was just before a jury trial, when the prosecutors would typically offer a defendant in all but the most serious cases a deal he or she could hardly refuse. I knew I had blown Bennies’ chance the first time and I wanted to turn back time. I knew I had to argue that Bennie received a new right to a jury trial since his new case number meant this was essentially a new case. <br />Knowing how important this was, I filed a motion to demand a jury trial and argued this point to the judge. He simply said “denied” and we were right back where we started: facing a trial before a judge, with a bad record, an angry police officer and misdemeanor charges that carried up to two years in jail. <br />At Bennie’s second bench trial, I worried again. I was prepared, but evidently not well enough. As I talked to Bennie in the hallway, his brother stood beside us. Bennie told me that two days ago his brother had seen a pure black blazer with a license number that matched Kiley’s original description perfectly. Not only that, but he had taken photos that clearly showed this. “We should win, shouldn’t we?” Bennie asked. As a person , I agreed with him, but as a lawyer I knew things weren’t always so simple. <br />I decided to take a chance. I took the photos to the prosecutor and told him I thought he had charged the wrong guy. The proof was in the pictures, right? Prosecutors tend to be very skeptical, even cynical, so the prosecutor called Kiley over to run this new “story” by him. Kiley went out into the hallway, used his radio, and returned with a smile on his face. I saw him talk to the prosecutor and saw them laughing together. I knew they didn’t laugh when things were going to go well for my client. The prosecutor then told me that Kiley had checked with his dispatcher and that this plate was registered to a red Blazer and that the plates were issued only a few months ago, before Bennie allegedly fled from Officer Kiley. “Nice try,” the prosecutor’s look said, “but your guy did it and he won’t get away with it.” <br />I didn’t know what to do. I knew that the things the dispatcher told Kiley, such as the fact that the plate was newly issued, wouldn’t come in at trial, but I was still nervous about going forward without a chance to prepare and investigate this new information. What if Kiley was lying and the plate was issued at the time Bennie was picked up? If I could demonstrate this, I could almost guarantee a win, no matter how confidently Kiley was in his identification of Bennie. I knew that if I could research the history of the plates and perhaps find out that they were issued to a black man with a medium afro in his thirties on the day Bennie was arrested, even the meanest judges would find Bennie not guilty. But I couldn’t go forward until I checked this out and prepared. <br />I asked the prosecutor whether he would oppose my request for a continuance and he told me that Kiley wanted to hurry up and take his kids to “Blue’s Clues on Ice” so he didn’t have any problem postponing the trial. <br />A week later, I sat in the office of the prosecutor who was known as the “fairest of them all.” I had done my homework and showed her that a Blazer with a license plate number, that exactly matched Officer Kiley’s original description, was registered to a black male, age 32. I showed her the photos of the other Blazer and told her I thought they charged the wrong guy. She sighed and said, “it looks like a lot of work.” She offered to dismiss the flight and reckless drinvign charges if Bennie would plead guilty to driving under suspension and to possessing marijuana. She told me that she had to ask for jail time because of Bennie’s bad record, but I knew she wanted to cover herself in case a steroid-fueled cop screamed at her for letting one get away. The clincher was that the prosecutor was only asking for jail time in name only since she would tell the judge to give Bennie credit for the thirty days he had already served for saying “that’s bullshit” at his arraignment hearing. In other words, the prosecutor was offering Bennie he chance to plead to the charges he could easily be found guilty of without having to pay any additional penalty. I guess she saw Bennie’s point at yelling “that’s bullshit” but she still needed to protect herself in case her boss or the officer second guessed her later. <br />Bennie entered a plea of guilty before Judge Barrett. The judge said, “Mr. Harris, you are either the luckiest man I know or the unluckiest.” Bennie just stood there, not sure whether to trust his public defender who told him this was the best outcome or to follow his own instincts which probably told him to fight instead of to trust. After holding us both in suspense, the Judge follwed the plea agreement and sentenced Bennie to thirty days, with credit for the time he had already served. On the way out of the courtroom, I saw a rare smile creep into Bennie’s face. “You mean I get my bond money back today too?” Bennie asked me. He surrendered $500 of this bond as a “bond fee” but Bennie didn’t seem to care. For the first time, he looked at me as if he believed in me. “You did alright” he said, nodding his head. “You did me alright.” <br />A couple weeks later I was walking across the street when a Blazer rolled down it’s window and Bennie smiled at me as he slowed down. “I finally got to see it,” I yelled. “It looks beautiful and you’re back on the street!” Bennie yelled back that he’d just gotten it back out of the pawn shop. <br />The prosecutors seemed to think that a guy like Bennie would be “in the system” forever, but I have only seen Bennie once since that day, as he was standing in line to pay for a simple traffic ticket. <br />Officer Kiley caught me one day in the hallway and asked, “whatever happened to the guy with the Blazer?” Part of me wanted to say, “You got the wrong guy and everybody could see it but you” but I knew I would never convince him. I also knew that if I threw this up in his face and took personal glory, Bennie would have to watch his back. After all, Kiley worked the night shift in Bennie’s neighborhood. I didn’t think Kiley was necessarily underhanded or corrupt, but I knew he would take revenge if the opportunity presented itself. <br />With that in mind, I twisted the truth and smoothed things over, so that Kiley would walk away happy and Bennie could get back to his routine. “Oh, that guy,” I said, as if this was yesterday’s news. “He pled guilty and got some time in jail.” Kiley smiled, as if he were appeased. I knew that if I tried to have the last laugh in this case the battle between Kiley and I and between Kiley and Bennie would continue. <br />Several months later Kiley foiled an armed robbery by chasing a fleeing car and jumping on the hood as it sped away. He spent a couple days in the hospital, but he made the arrest and gained the reputation as a “bad ass.”. After I heard this I had a new respect for what his job put him through and how he responded. I was glad to have to face off against him in the courtroom instead of on the street. I knew Bennie was innocent, that Kiley was mistaken, but I also know that Kiley believed he had “got his man.” Once he reached this conclusion, he wasn’t going to let some defense attorney convince him otherwise. Like Bennie, Kiley was hardened by what he’d seen on the streets. They both survived by trusting their instincts. I could only hope that their paths didn’t cross again.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-8709256613052686922008-03-28T17:41:00.002-07:002008-03-28T17:42:45.067-07:00TheodoreOne thing I like about being a public defender is the stories I often hear. Sometimes the things people do are funnier than anything you could ever make up about them. One morning, as I waited in court, I watched a public defender colleague read a police report detailing a traffic stop. She laughed out loud, caught herself, and then slid the report across the table to me, as if to say, “check this one out.” I saw that her client faced charges of having no proof of insurance and going the wrong way on a one-way street, which was surprising to me since I knew she was waiting for her client to be transported from the jail and normally jail was rare on these relatively minor charges. <br />Flipping to the narrative section of the report I read the following explanation: “Reporting officers were on routine patrol eastbound on 20th Avenue at Martha Street. Officers observed a tan 1989 Cutlass directly in front of us turn north on Martha, which is a one-way street southbound at that location. Initiated traffic stop and confirmed vehicle registered to Theodore Kelley. Kelley informed officers that a black cat ran across his path and that he turned the wrong way because his uncle had once let a black cat cross his path and had gotten in a car accident the next day. Kelley said he knew the street was a one way but he ‘didn’t want to risk having bad luck like his uncle did.’”<br />I read on and saw that this poor guy had not only taken a wrong turn to avoid a black cat, he also had a felony warrant for possession of crack cocaine. Of course, he was arrested on the warrant and had sat in jail since that night. In fact, he was probably going to prison on the crack charges since they involved possession “with intent to distribute.” <br />If turning out of the black cat’s path- and ending up in prison- was avoiding bad luck, I wondered what real bad luck would have meant for this poor guy. Perhaps if his luck was always this bad, he was better off in prison, where no black cats, ladders or glass mirrors were allowed.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-2922242339059075352008-03-28T17:41:00.001-07:002008-03-28T17:41:52.207-07:00AngelaAngela’s case puzzled me from the start. After I received the file and read that she was charged with fourth offense prostitution, I expected to also find out that she was in jail. But she wasn’t. The judge who arraigned her and took her plea of not guilty also released without requiring her to post any money. I expected her to be in jail because judges routinely set bonds of several thousand dollars on alleged hookers, especially those with records that reflected “experience in the field.” These people, who in my experience were almost always women, or men who dressed as women, virtually never posted these bonds and thus had to wait in jail until their trial dates because, after all, if you will take $30 for oral or actual sex, you probably don’t have $500 available to you. Almost everyone I represented on prostitution charges was only after enough money to get another rock of crack. They were not feeding a sex drive or a drive for money. They doing the only job their addictions would let them hold and were doing what they had to do to get the thing that would get them the precious little white rock. They were stripped down, literally and figuratively, to their cores and were willing to do virtually anything to feed their addictions. After they were caught trying to get money, and crack, they waited in jail because they didn’t have any money to post bond. <br />Angela had been set free, however, and I couldn’t understand why. I looked at her record and her release seemed even more strange. She had at least eight prior prostitution convictions. The reason she was charged with only a fourth offense was simply that the law of the City of Omaha stopped counting after four offenses and required an automatic six months in jail for anyone convicted of this. Angela had already served several fourth offense six-month terms, so it was apparent to me that she was not a new addict who had finally hit rock bottom. She had been living there for quite awhile and had never bounced back up, apparently.<br />It came as no surprise, then, when Angela missed the appointment she scheduled with me. I sent her a letter, telling her to schedule another one, but I knew the chances were slim. I reviewed the police report and it read like many other prostitution incidents. The officer described how she flagged him down, got in his unmarked car, asked if he was a cop and then agreed to give him a “blowjob” for $20. I knew we would have a hard time winning at trial because I had lost dozens of these trial as judges believed police over prostitutes. I couldn’t say that I blamed them because most of the clients I represented on these charges admitted to getting into a car with a strange man at a late hour in a bad neighborhood. Circumstantially, things usually looked terrible for my clients charged with prostitution and they usually ended up with convictions, no matter how cleverly I cross examined the arresting officer. <br />Like a few hundred other prostitution cases I had handled, there was nothing for me to do but appear at Angela’s court date, call out her name and see if anyone would answer. I didn’t expect anyone to answer when I stood at the front of the courtroom and shouted out Angela’s name. People charged with prostitution, especially the “non-Johns” whom I represented almost exclusively, rarely appeared in court voluntarily. A charge of failure to appear was very common in prostitution cases and I expected to hear silence when I called out Angela’s name. <br />I stood up, turned away from the counsel table towards the back of the courtroom and half-shouted “Angela Spellman. Is Angela Spellman here?” The room was quiet though and I sensed a strange, uncomfortable silence come over the crowd of vice and uniformed cops at the back of the room. No hands went up though, and I started to hurry off to another courtroom to see which of my clients made it to court that day. I thought, “Here we go again. Another prostitute who will show up in a few months after she gets caught again” and I turned to leave. <br />Then a voice came from behind me, “Angela Spellman? Are you here on that case?” It came from the prosecutor and he had a strange look on his face. “Didn’t anybody tell you?,” he said. “She was found dead about two weeks ago.” My mouth dropped, and I wondered if he was kidding. I routinely read about former and current clients in the paper, as they graduated into greater and more headline-worthy crimes, but I had never called out the name of a person and then found out they were dead. <br />As I talked to the prosecutor, another prosecutor, who was sitting at the table, chimed in. “Is she the lady that was arraigned by Judge Lowe?” I looked in the court file and told him that she was. He said, “Yeah, I remember her. It was her birthday and he told her his present was that he was letting her go home. Everybody clapped for her.” I looked in the file and saw Angela’s date of birth was the same as the date the judge had written on the bottom of the page. <br />I knew Judge Lowe fairly well from being before him on hundreds of cases and I knew he was not afraid to put people in jail. I also knew he had a lot of common sense and had grown up in a part of the city where you had to learn street smarts, especially if you survived to become a judge. While some suburban-raised judges would have never bent the rules for Angela, Judge Lowe knew the odds of this prostitute being rehabilitated were slim to none. He knew she would eventually do six months in jail on the charges and he probably thought there would be no real harm in sending her home on her birthday. After all, to a person in her condition, acknowledging her birthday and getting a courtroom of people to clap for her as she stood before them dressed in an unflattering jumpsuit, accused of having sex for money, probably restored a little dignity to a hard life lived on harsh streets. Hookers don’t get many birthday presents and Judge Lowe was probably the only person who even acknowledged her special day who didn’t want something illegal in return. <br />But she was dead less than a month later and that birthday was her last. Her case still haunts me, even though I will never even know what she looked like. Every time I call out a client’s name and hear no response, I wonder if perhaps they have an excuse as good as Angela’s. Calling out Angela’s name and hearing her story was unsettling because I saw how quickly a life can be lost and how quickly the machine of the system will grind on afterwards. I was a part of the system too, but part of me wanted it to stop and acknowledge that one of its lives had been needlessly taken. On the other hand, I had other work to do and other judges in other courtrooms who didn’t have time to care about a faceless prostitute turning up dead. I went back to my work quickly, partly because I had to and partly because it was painful to have to acknowledge the fine line between life and death as I tried to make a living in the world. Seeing an example of how quickly a person’s life can be taken away also reminded me that we are all here temporarily. It is scary to think that we never know when our own names will be called and pretend that they never will be.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-56738017454751562632008-03-28T17:37:00.000-07:002008-03-28T17:40:58.483-07:00JuliaI was assigned to Julia’s case in February, when I was sick of the long, dead winter and ready for the renewal of Spring. I was sick of people with problems, people without jobs, people who had responsibilities but no real responsibility. I was sick of trying to help people who didn’t seem to want to help themselves. My attitude was sinking and I was starting to see my clients not as individual human beings but as almost a different species than me, the way the worst judges see them. I was sick of people not showing up for court, of seeing babies gathered in the courtroom to catch a glimpse of their mommies in orange jail jumpsuits, of judges who yelled at me for doing the job they appointed me to do. I was reminded of a Nietzsche quote from college: “when you look long into an abyss, the abyss also looks into you.” The optimism that brought me to the public defender’s office was slowly wearing away as I dealt with too many cases, too many problems to solve and not enough hours in the day. <br />When I read the police report detailing the government’s case against Julia, my heart sank even lower. Julia was charged with stealing a rather odd combination of beer and toys from a convenience stores. Her two small children were with her and she had reportedly allowed each of them to pick out an item before attempting to steal it for them, along with a quart of beer for herself. Since her children were along, Julia was charged, quite understandably, with both theft and two counts of child neglect. To make matters worse, she missed her initial court date almost a year ago, resulting in a charge of failing to appear in court being added. I was surprised that a judge had not set a high bond on her when she turned herself in after being absent for almost a year. Instead, the judge ordered Julia to appear for trial and appointed the public defender. <br />After reading the police report, I pictured Julia as a terrible mother who spends her food stamp money on twinkies, sucks down a twelve pack and then drags her kids along to the store so she can maintain her buzz and not have to waste beer money on a sitter. I also pictured Julia as being dumber than dirt. The report stated that she “tried to conceal the beer on her person” and I thought of a grown woman with two kids in tow trying to hide a large, heavy twelve pack up her shirt. She would have been better off wearing a sign that said “shoplifter.” How could a person be senseless enough to shoplift a twelve pack of beer and who would be heartless enough to do it with children? <br />But then I met the Julia. I was stunned when I called out her name and the woman with the tattoos and the greasy hair sat silently while the nicely-dressed woman stood up and smiled sheepishly. She was about forty and had obviously made quite a few changes in the year that had passed since she received these shoplifting / child neglect charges. Julia looked like a typical mom. Her clothes were nice but conservative, as if she might work as a secretary or a dental hygienist. Behind her, as she walked in, trailed an adorable dark-haired girl of about four. I asked Julia her name and she told me Bianca was five and would start kindergarten next Fall. Bianca looked like a typical, well-adjusted kid and not like a child whose mom modeled shoplifting. I noticed the way Julia stopped patiently to wait for Bianca as we wound through the corridors to my office and noted that Julia seemed patient and caring, unlike the lady I’d read about in the police reports. <br />I saw my clients cry almost on a daily basis, even the “tough guys,” so I was used to seeing tears and hearing cries of regret, frustration or perceived injustice. Usually I pushed a box of Kleenex toward them and kept on talking. I didn’t mean to be insensitive, but we both had work to do and tears were not going to wash criminal charges or potential jail sentences away. In fact, like me, most judges were used to tears and would be more impressed with emotional control and action, than with raw emotion and words. <br />But, once again, Julia was different than most of my clients, just as she seemed different than the woman I read about in the police reports. When I read the report aloud, Julia cried steadily. Her tears seemed more genuine than most, however, as if she was hearing about this for the first time, as if she were a good mother being told about her normally good daughter’s bad behavior, for the first time. Unlike a lot of my clients, who didn’t seem bothered about having their children sit beside them as I told them about possible jail time and they told me about getting caught stealing, Julia did not want Bianca in the room while we discussed her case. She sent Bianca into the hallway outside my office, with a pen and paper to draw on, seemingly so Bianca didn’t have to be reminded of the bad things mommy did last last year. <br />Julia was not much help to me as I prepared her cases, though, because her memories of those two days were clouded by the amount vodka she had consumed. She vaguely remembered sticking a quart of Coors light down the front of her pants, but, as I read the report, she looked as if she were hearing that what seemed like only a bad dream was real. <br />As she told me about that day, Julia cried, but composed herself quickly. She seemed embarrassed to have to tell me about this but seemed to have learned how to talk about tough things, deal with them and move forward. As I suspected from some of the clichés she uttered, (such as “one day at a time” or “that old stinkin’ thinkin’”) Julia spent the last year going through an outpatient alcohol treatment program and was now living in a “half-way house” where she was learning to deal with life without alcohol. She maintained sobriety for eight months, found a “sponsor” through Alcoholics Anonymous that she talked to every day, and her kids had recently returned to live with her. <br />Julia told me she went through a tough divorce two years ago and had taken her first drink just four years ago. I silently wondered if the alcoholism had been the cause of this break up or if the booze became a refuge that Julia retreated into as things in her life fell apart. She told me her ex-husband was still a good friend and that he watched the children during the months she spent in treatment. Recently, Julia moved into an apartment with a big backyard for the kids and she was now ready to start looking for a job. <br />But true recovery means making amends for mistakes in your past and as Julia became stable enough to start applying for jobs, she knew it was time to take care of the theft case from last year that turned now into an active arrest warrant when she missed court. She realized that some jobs would conduct background checks before they hired her, so she turned herself in at the police station, spent several hours in jail and had been lucky enough to draw a judge who released her without requiring a bond to be posted. <br />Luck, as well as her clean and sober appearance, kept Julia out of jail thus far, but I knew I would need more luck to keep her out of jail in the future. She told me she wanted the child neglect charges dropped so that she could find a good job in the health care field, but I knew that avoiding both jail and child neglect convictions might be too much to ask. I told her I would try but that I couldn’t promise her anything more than that. I had long ago learned to avoid promises about certain punishments since it was the judge who ultimately decided what the punishment would be upon conviction. I tried to have influence over judges and jurors, but I had little real power. No matter how persuasive I was, the judge or the jury could always convict my clients and no matter how sad a story I told about what the appropriate sentence should be, the judge could always roll her eyes and give my client the maximum. I didn’t tell Julia this, though. I just told her I didn’t’ want to “jinx” her by telling her what I thought would happen. I told her I could give her a much better idea once I spoke with the prosecutor, but I reminded her, like I reminded all my clients, that it was always the judge who decided what the punishment would be. I felt good about Julia’s chances, however. I knew the judges would, like me, be shocked at what they read about in the police report, but pleasantly surprised at the contrast between Julia then and Julia now. I knew when I told the judge that Julia was an alcoholic, not an abuser, most judges would believe me as they looked past my words to the example of sobriety that Julia now set. <br />As I walked her to the door, Julia looked worried. I was worried too because I knew most prosecutors, and most judges, would understandably be upset about a mother who stole beer with her children in tow. Still, the look of genuine regret and outright addiction in her eyes, and the way she patiently mothered her child, made me want to work hard for her and ensure that the system didn’t inadvertently ruin her run at long-term sobriety and recovery as it punished her for something she did while in the lowest depths of addiction. I knew Julia, at least the Julia I saw today, didn’t belong in jail. I also knew that if I could get the prosecutor and judge to see what I saw, Julia would at least get a chance at probation. <br />A week later I spoke with a prosecutor about Julia’s case. Most of the time, the number of cases that were assigned to me made it impossible to discuss plea bargains before court. For Julia, though, and for Bianca, I made the time to find a prosecutor whom I thought would sympathize with Julia’s divorce and subsequent descent into small time shoplifting. I told him I knew I was asking for a lot, but that I had a good feeling about Julia and I wanted him to dismiss the child neglect charges in exchange for Julia’s plea of guilty to the theft and failure to appear charges. This prosecutor’s office, like most, was heavily influenced by “headline” issues such as drunk driving and domestic violence, so I knew I was asking this fair-minded prosecutor to risk getting yelled at for risking his boss’ political career by being “too soft.” I told him Julia struck me as both a good mom and a bad alcoholic, that she had not done anything like this before and had cleaned up her act. To my surprise, he agreed with me and offered to dismiss the child neglect charges. I guess he reasoned that having this mom plead guilty to shoplifting, while having the details of the case read aloud in a crowded courtroom, was punishment enough. <br />I scheduled an early plea hearing and hoped for the best. Julia was lucky once again as the judge, after hearing about her sobriety and treatment, ordered her to pay a fine of $200, plus the court costs. While a fine was always preferable to probation for my clients, since they could get into more legal trouble if they violated the probation terms, I secretly hoped for the judge to place Julia on probation. I knew that while six months sounded like a long time to go without a drink, to an average A.A. member Julia was still in the infancy stage of her sobriety, vulnerable and susceptible to the cunning and baffling disease of alcoholism in the form of a relapse. Julia looked strong, though, as she walked away. I hoped for the best but also hoped to never see her again, unless it was in the mall or someplace where further contact would not indicate further legal trouble and more drinking. <br />I was wrong. About a month after I said goodbye to Julia, I pulled out my new files and saw her name typed on a brand new file that meant brand new charges. When I looked at the “offense date” I saw that about a week after we said goodbye the last time, Julia received new charges of driving under the influence and striking a fixed object. I copied the police report and read about how Julia almot struck a police cruiser and that ehe officers drove into a fence as the tried to get out of her way. She drove down the street, the report said, and struck a parked car, making it simple for the police officers to jump out of their crashed cruiser and see Julia sprawled out, unconscious, from either the impact or the vodka, across the front seat of her car. <br />Fortunately for Julia, she was alone in the car and I knew something must have happened to separate the mother and her children again. She looked like such a devoted mom, but she also looked like a problem drunk who had not made anything out of the chance I tried to give her. <br />Her blood test was .32 milliliters of alcohol per 100 liters of blood, which was exactly four times the legal limit of .08 in Nebraska and most states. I didn’t know whether to yell at Julia or tell her how sorry I was that she seemed to be getting worse. I had long since learn that yelling at an alcoholic who was this far down was about as productive as beating your head against a hard object. <br />I expected to see Julia at her appointment, but when another public defender asked me if I remembered Julia, I knew things were going badly for her. This public defender worked on behalf of people who were brought before the County Board of Mental Health to determine if they should be involuntarily committed to psychiatric institutions because presented a significant danger to themselves or others. In short, because Julia nearly killed herself and others, the state was have her committed to an institution where a psychiatrist would create a treatment plan for her. <br />When Julia missed her appointment, I wrote her a letter but received no response. Then, about a week before her trial date, Julia left a message asking me to postpone this date so she could successfully complete her stay in a second “half-way house” for recovering addicts and alcoholics. I called her back and she impressed me by first asking about and making sure no one was hurt in the accident she caused. When I told her the details of this arrest, she acted (once again) like she was hearing about these events for the first time, with only a fuzzy memory of what actually happened. <br />As she wished, I continued or postponed her case and sent her a letter with the new trial date. She made a new appointment with me and kept it this time. After we talked about it, Julia decided to plead no contest before her trial date so that we could guarantee which judge would sentence her. There was not much to contest when a client almost hits a police car, spills vodka all over their vehicle and then tests four times the legal limit, so I knew Julia should cut her losses, find a favorable judge and get back on the road to recovery, where she recently been driving. Luckily Julia maintained insurance on her vehicle, which made the issue of restitution much easier to deal with. <br />At the early plea hearing, Julia waited in the courtroom beside a man I assumed was her father. I knew her driver’s license was revoked for the drunk driving charge, so I assumed that she asked her dad or another older relative for a ride and for moral support. When I spoke to Julia alone in the hallway, she described this older man as “her ride” but didn’t go into specifics. As we waited for the judge to call Julia’s case, I looked back at Julia several times and noticed the older “ride” placing his arm around her shoulder and holding her to him, forcefully but awkwardly. Julia didn’t resist this, but she looked uncomfortable with it, as if she were being squeezed by an old, perverted uncle. Later, I saw the man proudly reaching around her opposite shoulder and smiling, grasping her the way a hunter holds an animal just before the camera clicks. <br />I didn’t see anything inappropriate, but any intimacy seemed forced as if someone were taking advantage of someone else and using that person for something more than a just a ride. Julia’s personal life was not my business, but I couldn’t help worrying about whether she was being taken advantage of, or if she had been forced to find someone she could live off of or cling to, as she struggled to stay sober and alive. I wondered how desperate she must have been to enter into such an arrangement. I also wondered if this arrangement would keep her away from the bottle of vodka or if it meant she was still stuck in the cycle of dependency, where a bottle or a perceived lover promise you a beautiful feeling and end up leaving you with nothing but aches, pains, and regrets. <br />Julia still carried herself like a devoted mother, but she didn’t mention or bring any of her children to court with her. When you looked close, though, she seemed much less stable than the first time we met, as if she were slipping back toward becoming that stranger in the convenience store, with a child on each hand and a quart stuffed down her pants. I remembered Julia telling me that she never finished high school and I wondered what it must be like to be in your late thirties, without even a GED, with three children, no job and a serious drinking problem. It ws easy to judge Julia, but few of us will ever have to deal with these hardships. Whether I chose to believe her hardships were self-inflicted or not, I knew Julia’s lot was harder than anything I had overcome. I hoped there was a way out for her, but the new look of uneasiness in those eyes didn’t leave me much real hope. <br />Julia was sentenced to probation this time. She was required to stay sober and be tested for this, to keep attending A.A. meetings and to pay a $500 fine. In the hallway, as I directed Julia where to go to get started on probation, her “ride” walked up beside her and put his arm aroundher again, as if to tell me “she’s mine” and to remind her who was in charge. As we said goodbye, I silently predicted that I’d be seeing her again soon. The uneasy look in her eyes and the unhealthy bargain she had apparently struck with an old man mad me suspect the Julia might not be able to comply with the “no alcohol” clause of her probation. It was obvious Julia was not ready to live independently, but perhaps this dependence on a man would help her overcome dependence on a liquid. I certainly hoped it did because I remembered someone telling me that there are three types of institutions for people with drug and alcohol problems: treatment centers, jails, and morgues. Julia had been through one and had come close to going to either of the other two. She seemed like type of alcoholic who would never intentionally hurt anyone but who could easily, but unintentionally, kill or hurt herself or someone else if her alcohol problem was not solved soon.<br />The grip the old man had on her seemed unnatural. But seeing such a healthy looking mother with such a severe alcohol problem seemed unnatural too. I hoped this strange arrangement allowed Julia to avoid being alone and vulnerable but that it didn’t create even worse problems for her, the way such bargains often do. I hoped I would never see Julia’s name on a file again. <br />About a year later, I noticed that Julia had been terminated from probation successfully, meaning that she complied with all of its demands. I met about a thousand new clients in the meantime, but I never forgot about Julia or Bianca as I hoped they were doing as well as when we first met. I met so many new clients, though, that I began to forget names and faces, especially those I hadn’t known well or had only met in passing. <br />One day I was interviewing a new client who was charged with making harassing phone calls to his ex-girlfriend and with violating the protection order she took out against him to get him to leave her alone. The man, who looked like he was in his sixties, told me about meeting a woman through Alcoholics Anonymous and that they struggled to stay sober together and eventually split up. He told me he loved the woman, but that he would leave her alone to avoid further charges and problems. He mentioned that he had also “fallen in love” with the woman’s beautiful six-year old daughter during the course of this relationship. I took notes as he talked to me and wished I had the police report to refer to as we talked, but it hadn’t been delivered yet. He remarked, “Oh yeah, that Bianca, she was a little sweetheart…” I stopped him in mid sentence and his face, that had at first seemed vaguely familiar, suddenly became crystal clear in my memory. <br />“Is the woman’s name Julia?,” I asked. He nodded and seemed surprised that I would know this. After I told him that I was Julia’s attorney, and had met him the day he brought her to court, he remembered me as well. <br />Trips down memory lane are always nice, but hearing this man tell me who he was charged with harassing created an ethical dilemma for me. Ethically, I couldn’t legally represent both of them at the same time because this would be a clear conflict of interest that would require the appointment of a lawyer outside of my office for one of them. Morally, I shouldn’t represent him if my past representation of Julia would interfere with my ability to represent his legal interests in the face of domestic violence charges brought by her. <br />I checked on the computer, saw that Julia had no open cases and concluded that there was no obvious conflict of interest present since Julia’s probation was finished. I knew most judges would laugh at me if I told them they should ask the county to pay hundreds of dollars to a private attorney because I knew the victim well from a case that came to court over a year ago. I knew that they would expect me, as a professional, to put my personal feelings aside and do my job, even if it meant cross-examining a former client who had built up a level of trust with me in the past. I didn’t know what to do, in other words. I didn’t want to be put in a position where I would have to call Julia a liar on cross examination, but I also didn’t want to look unprofessional to the judge either. <br />The man told me that, like Julia, he had missed court several months ago and had later turned himself in on the warrant “to try to put this matter behind him.” He spent several days in jail before he bonded out, though, and had posted $500 in bail money. As I pondered what to do about this ethical dilemma several days later, I picked up the phone and heard a familiar voice. It was Julia and she asked me to help her ask the judge to expunge the theft charges from her record since she successfully completed probation. I told her it was not that simple, that she should wait a little longer before asking the judge to consider this, and then I told her that I was Terrance’s attorney and that I would be representing him next week at his trial. <br />Julia was quiet upon hearing this and she told me that “it would be alright.” Her tones didn’t’ mirror her words, though, and I sensed some hesitation, as if she was not excited about seeing someone who had fought for her suddenly have to fight with her in court. I wanted to tell her that it would be alright too but I didn’t. As much as I wanted to speak the truth to her, I had other things to think about. I knew that old lovers, such as these two, often speak notwithstanding protection orders, and I also know that my words to Julia could be used by her as a weapon. I could see her saying, “Oh yeah, well your lawyer likes me and he told me that he wouldn’t yell at me in court.” I knew that if Terrance were convicted, and it looked like he might be, he could easily complain to the Bar Association about me and blame his conviction on my past history with Julia. <br />I decided to wait until the trial date and then raise any questions to the judge, so that the record would be clear and the judge could make the call, if necessary, about whether I could represent Terrance adequately. <br />Julia looked at me as I walked into the courtroom, but I couldn’t greet her as I had before. I knew my client was trusting me to represent him and that seeing me hug “the victim” wouldn’t look real good to him and wouldn’t look real good to the counsel for discipline if Terrance were ever to call them about me. <br />Julia had always been a little lucky in court and luckily this man’s case worked out so that everyone walked away relatively happy. Terrance pleaded guilty to violation of a protection order, and the judge followed the prosecutor’s recommended sentence of two days in jail with credit for the two days he already served. Because of the conviction, a second violation of the protection order would carry much stiffer penalties, so Terrance also had a strong incentive to leave Julia alone. <br />Julia seemed happy and healthy when I spoke with her in the hallway. After the case was over, I felt more comfortable talking with her and asking her about how her life was going. She seemed as healthy as the day we first met and I remembered having secretly wished that she would get away from this man as she got further into her recovery. My wish came true for Julia, but I ended up playing a strange role in this drama, that of defender of the man I wanted to see her leave. <br />Yet, when I spoke with Julia in the hallway, she looked at me a little cautiously, as I were not on her side anymore and couldn’t be trusted as much. I felt a little like a “hired gun” who works for whichever side is paying more, except I wasn’t getting paid enough to even afford to make my student loan payments. <br />As Julia walked away from me, I decided to be happy about the way she looked cautiously at me instead of trustingly, as she had before. Even though it hurt to have a client you truly care about watch you defend someone they had grown to hate, I decided that this look of caution meant that Julia was doing much better. After all, if she learned to be cautious and more self-reliant, maybe it meant she was becoming a survivor who could live independently of both public defenders and booze. <br />She was one of my favorite clients, one of the success stories I remembered when I read sad stories in the newspaper about clients being found dead or being caught on videotape, robbing banks. She didn’t trust me as much anymore and didn’t look at me the same way, but at least there were no more files with her name on them showing up in my “in” box. As a public defender you learn quickly to “take the bitter with the better.” Even though I lost her trust, I got my wish and so did she. <br /><br />I felt good about getting to know Julie and about helping play a small part in helping her get back to being a sober person and a successful mother. Julia’s was a case that I held up, in my mind, as something to shoot for in all cases. When I saw too much failure, too much of the effects of poverty, of addiction, or stupidity, I picked up my own spirits by thinking of Julia and the difference between the way she looked when I first met her and when I last said goodbye to her. <br /><br />Then one day, in the hallway outside my office, another lawyer in our office said something that made me cringe and not really want to hear what followed. “Guess where I saw Julia last night?,” Jenny said. Jenny represented Julia in her child neglect case in juvenile court and had gotten to know her as well if not better than I had. <br />It was College World Series time in Omaha when Jenny said this, and I knew a lot of people were out in the bars, watching the games and soaking up the playful atmosphere. “Do I really want to know?,” I asked, seeing the look of disappointment on Jenny’s face. <br />“Probably not,” Jenny said, “but I saw her at Pauli’s, with a beer in her hand. She wouldn’t look at me.” <br /><br />A couple weeks later I saw Julia in the elevator. She looked almost as good as she had the last time I saw her, when her life was seemingly together. I had heard that hardcore alcoholics like Julia “cycled” back quickly into the worst conditions of their disease when they went back to drinking, but didn’t see this on Julia’s face. Still, there was something in her smile and the way she said hello that seemed not quite real, unlike the last time we met. <br /><br />I don’t know what happened to Julia. I half expected to keep seeing her in court or to hear from her on the phone, thinking that she’d probably become more and more desperate. But I didn’t hear a thing. <br /><br />It wouldn’t surprise me if she fell hard, back into the darkest days of her drinking. But the fact that I never heard from her again made me think that, maybe, she overcame her problems and turned what addicts call a “reuse” into a mere “relapse,” or a bump in the road to recovery. She surprised me before. Hopefully she could do it again.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-80759401009569691282008-03-28T17:35:00.000-07:002008-03-28T17:37:36.709-07:00LorettaLoretta stood out amongst the crowd when I saw her in the waiting room of the Public Defender’s Office. She was a tall, slender, African-American woman with perfectly straight, long, blond hair that stretched down below her shoulders. She was well-dressed and sat with her legs crossed on the bench in our waiting room, looking more like an applicant to the Public Defenders office than a client. The way her blond bangs hung perfectly on her forehead, the way she glanced out of the corners of her eyes, and the way she sat on the edge of her seat, made her look like a beautiful woman who had just changed her appearance, as if she was running from the law or an ex-boyfriend. She stood up hesitantly when I called out her name and when I extended my hand to her, she winced, as if she didn’t want to reach out and touch it. When she did, she let go quickly, as if I’d held out a used Kleenex. <br />While I wasn’t used to having people look at me as if I was dirty, I empathized with this feeling. It always seemed like the dirtier my clients appeared, or the more often they wiped their noses on their hands when they talked to me, the more likely it was that they would extend their hands to me when our interviews were over. I went through a lot of hand sanitizer, but I couldn’t bring myself to not take someone’s hand when they offered it, no matter how dirty it looked. Leaving them “hanging” seemed like the ultimate in disrespect. <br />Loretta followed me back to my office and sat, perfectly straight, on the chair with her hands folded neatly across her lap. She was about thirty years old, was very pretty, and was facing a second offense drunk driving charge. Her eyes darted cautiously several times, as if she were scanning the room for danger, the way a frightened animal would. I asked her some background questions, noticed that she was currently on probation for her first offense drunk driving charge and remarked that she had been arrested, both times, by the same, notoriously dishonest police officer. I said something like “I see you met up with Officer Balder a couple times. That’s some bad luck.” <br />“He remembered me from the first time, when he pulled up in front of my house, and he knew I was afraid of germs, that I didn’t like to be touched,” she said. I asked her what she meant by this, scanning the police report while she talked. Officer Balder had written “phobia of germs” under the comment section of the drunk driving form, and Loretta told me she had “something called Trichotillomania.” I asked her to repeat it and I mouthed the word quietly to myself, trying to think of where I had heard that word before. She said, “It’s where you pull your hair out,” as she squirmed in her chair slightly, embarrassed. When she said this, I remembered reading about this condition in a book I had been reading at home called “The Boy Who Couldn’t Stop Washing” which described the lives of people who suffered from Obsessive Compulsive Disorder, or OCD. I found the book and the subject fascinating and remembered that people with Trichotillomania obsessively pulled their own hair, eyebrows, or even eyelashes out. <br />As soon as I remembered what “Trich” was, I looked at Loretta’s face and studied her eyebrows. They looked perfectly normal, but I wondered if what I now knew was a blond wig was perhaps covering a bald head. This wasn’t any of my business of course, but suddenly Loretta became a curiosity to me. While I wanted to help her as her lawyer, I was also like a bystander at an accident or a patron at a sideshow. As a professional, I should have been concerned, but as a human being, my curiosity was piqued and I didn’t turn away. I was now intrigued about Loretta’s affliction, just as I had been fascinated with the latest book I picked up at the library. She was now “interesting” to me as a living example of a strange, mental disease that I had been reading about only in books. <br />As she told me about her case and her condition, I told her I knew about OCD, that I had been reading about it, and that I thought it was something she couldn’t control on her own, no matter how she tried. I told her I thought it was controllable with medication, but that she was “playing with fire” if she was not taking medication for it. I told her I saw a lot of people who had mental health problems and who then developed drug and alcohol problems, as they tried “self-medicate” their mental problems away. I didn’t tell her this, but experience told me that eventually these people’s psychological and substance abuse problems led to behavior that created legal problems. The legal problems, and the possibility of jail time, brought them to see me, but it was the mental health issues that were the real problem. The problem for clients like Loretta was that truly helping them meant a three-step process. First, I had to minimize the punishment they faced for their legal problems. Second, I had to make substance abuse treatment available to them so they didn’t get into more legal trouble. Third, I had to point them in the direction of mental health treatment so that they truly worked on the “root’ of the problem that brought them to see me. As if this wasn’t enough, the biggest problem these poor people faced was the possibility of drawing an uninformed judge who misunderstood mental illness and punished mentally ill people the same way they punished thugs or thieves. <br />We talked about Loretta’s life, how her struggles with Trichotillomania and O.C.D. led to her leaving her job, how her husband had been unfaithful to her and filed for divorce, and how she now stayed at home most of the time with her three children. When I asked her if she’d ever seen a psychiatrist or a doctor about getting on medication for her condition, she told me she had been on Paxil for awhile but didn’t like the side effects and eventually quit taking it. Part of me wanted to say that the side affect of not being on medication was being forced to come see me and talk about the possibility of going to jail. I held my tongue, though, and Loretta told me that she began pulling her hair when she was a child but that she had not seen a doctor until the last few years. She said she asked her mom about this and wanted to know why her parents hadn’t found someone to help her. Her mom said, “black people don’t go to the doctors” and “we just thought you were a little different.” <br />She went on to tell me that recently she had driven with her husband to a nearby city to attend a support group for people with O.C.D. While the topic was right for Loretta, the age group was not. The only group she could find was specifically for children with O.C.D. and Loretta soon became the unofficial guest speaker. Many parents questioned her, wanting to know what to expect from their children in the future. Many children wanted to talk to a grown up who had the same mental glitch that they fought with. She said her husband kept saying, “Let’s go!” until she finally walked away in the middle of the meeting. She went there for help but left feeling even more helpless, as no one told her anything new but only questioned her. Worst of all, her husband seemed to lose all hope and what had felt at first like a new beginning became another dead end. <br />Loretta told me about her case, how her aunt came to visit and parked in front of her house facing the wrong way. Loretta said she got in the car to move it and would have driven it around the block so it would be facing the right way. Before she drove even thirty feet, though, Officer Balder pulled in behind her, turned on his lights and eventually arrested her for her a second offense D.U.I. As Loretta told me this story, I noticed that the intoxilizer test that was performed on her breath registered a .276, which is more than three times the legal limit of .08 in Nebraska. The high test made me take her explanation with a gallon of salt since I knew it was unlikely that a person who was that drunk would remember things clearly or remember anything at all. Maybe she was telling the truth or maybe she was too drunk to remember what it was. <br />Loretta needed some serious help. She was charged with violating her “drunk driving” probation that a judge sentenced her to begin six months ago. She was also charged with getting a new drunk driving charge, one that carried mandatory jail time, in the middle of her probation term. This level of “trouble” was routine and not shocking to me. I saw it every day and was used to it. What worried me about Loretta, and what made her case different, was that putting her in jail would not only be devastating to her and her children, it would be counterproductive. While a lot of my clients learned a valuable lesson when their stupid decisions sent them to jail, Loretta was truly sick and afflicted. While many clients claimed this status, few really deserved to be described this way. She was one of the few. <br />A few years ago she was married, was working a good job and had three beautiful children living at home. Now she was unemployed, separated from her husband, looking at going to jail and suffering from a mental illness few people had ever even heard of. She was stuck in a court system that labeled all law violators as needing punishment when what she really needed was medication and mental health treatment. She was talking to a public defender who was curious about O.C.D. and trichotillomania but who was no expert. She had been dealt some bad cards in life, and she needed a lawyer who could play her remaining cards carefully, to minimize her punishment and maximize her access to mental health treatment. The odds didn’t look good. <br />I had the option of filing a “motion to determine competency” with the court which officially tells the judge that I believe serious mental health issues are involved in a case. In theory, I probably should have done this, but there is an immense difference between good theory and good practice. I didn’t file this motion because I knew it would hurt Loretta immensely. She would be brought before the Board of Mental Health, would be found to have been a danger to herself and would likely have been institutionalized and forcibly medicated. I knew from talking to co-workers that such a step was not to be taken lightly and that it was not pleasant to witness. There might come a day when I saw that Loretta reached the point where this had to be done, but I wanted to try less drastic methods first. It went against my instincts to “rat’ on my clients to a judge who would be quick to “get rid of them” by sending them to the Regional Center to be evaluated for their mental competency. My role was to minimize what the judge did to my client, not to aid and abet a harsh outcome. <br />Loretta talked for almost an hour. She “opened up” about her case and her life, relieved to have found someone who knew a little bit about what she was going through. I searched the internet, and found a support group for O.C.D. in West Omaha that met once a month and that was meant for people of all ages. She said she might go, but I wondered how she would get there since her driver’s license was revoked and her husband long gone. It was a ray of hope for her, though, and she seemed genuinely thankful. I told her about an organization that I worked with frequently whose mission was to help poor people who suffered from mental illnesses. I told her that getting an evaluation from this facility might not only help her, it might also keep her out of jail. While Loretta waited, I called a psychiatrist and was given the names of three other psychiatrists whom he recommended as being knowledgeable about O.C.D. and also accepting patients who paid with Medicaid. <br />Loretta was excited about getting this new information and left with a smile on her face. I felt hopeful for her too, but I didn’t want to get too emotionally involved or get my hopes up too high. It wasn’t that I didn’t want the best for truly needy, obviously mentally ill clients like Loretta. I had simply watched too many fall down hard to be hopeful about any making it out of the court system safely. I hoped for a happy ending, but her problems were so multi-layered and severe that chaos was the more likely outcome. I already cared about her deeply, but also didn’t want to get too attached knowing that success in my job was like success in hitting a baseball. On a good day, if one out of three things went your way, it was a pretty good day. <br />Since Loretta had been on probation when she was picked up on the new drunk driving case, she was in “double trouble” and facing both the new charges as well as a violation of her probation. The “V.O.P.” came first and I met Loretta for the second time in a dingy courtroom on a Thursday morning. They had her “dead to rights” for violating her probation, no matter what kind of deal I got her on the new charges. The standard of proof for a probation violation was set at “clear and convincing” rather than the “beyond a reasonable doubt standard” in a criminal case. Because Loretta had been ordered not to consume alcohol while she was on probation, the prosecutors didn’t even need to show that she was guilty of the new charges, only that she was in possession of alcohol. The arresting officer would simply have had to testify that he found Loretta with a beer in her hand (which was true) and the State would have proven their case. Needless to say, Loretta pleaded guilty to the V.O.P. in exhange for a recommendation from the state that she be sentenced to serve the minimum jail time, seven days in jail. <br />I knew that this would involve Loretta leaving the courtroom in handcuffs and being driven in a van to the correctional center. This would be tough for he, but there was not much I could do about it. All I could really do was provide “damage control” at this point. I also knew that Loretta would likely be released from the jail almost as soon as she arrived there since her particular crime, being non-violent, qualified her for “house arrest.” I knew the judges well and knew that this judge typically allowed pre-approved house arrest by writing “house arrest approved” on the mittimus, which was sent to the correctional center with Loretta. This pre-approval accelerated the process and made it likely that Loretta would be uncuffed- and sent home- within an hour or so after arriving at the jail. <br />I called the supervisor of the house arrest program when I got back to my office, told him about Loretta’s condition, and asked him to help get her home as soon as possible. He told me he appreciated the information and promised to do what he could. The next hour would be pure hell for Loretta but hopefully she could spend the next seven days recuperating from the experience in the safety of her thoroughly sanitized home. Later that day, worried about her, I pulled up the jail census on my computer and saw that Loretta had been released a little before lunchtime. I was relieved, as if one case was down with one to go. I imagined Loretta thinking the same thing, back at home. <br />Before Loretta’s trial date, I checked to see which judge she had drawn. Obviously I wanted an understanding judge who would not try to “cure” her mental illness with a swift kick in the ass or a few weeks in jail. When I saw that Loretta’s case would be heard before one of the most understanding judges in the county, I felt like she was receiving some well-deserved justice. She had been unlucky in life and and imprisoned long enough by a severe, misunderstood mental illness. She deserved some luck in court and her luck was holding out. I couldn’t wait to see her and to see how well she was doing as a result of the leads I had given her at our last meeting. I was intrigued by Loretta’s story and wanted to see it come to a happy ending. Despite the many tragic endings I witnessed every day, I expected Loretta’s case to be different. After all, she was obviously mentally ill, had not known where to go for treatment, and now had been given the essential information she needed about where to get mental health treatment. Surely she would show up for court, exemplifying how well good people do when they are given access to the services they truly need. As I walked to court that morning, I was excited to see Loretta and to see how well she was doing.<br />As expected, Loretta was doing great. I had many cases that morning so I didn’t have much of a chance to hear details about Loretta’s progress. She told me she had an appointment with a psychiatrist, but hadn’t seen him yet. Her general progress showed on her face, though, and she looked more confident and less controlled by fear. The prosecutor offered to dismiss the other charges and to recommend probation if Loretta pleaded guilty to the drunk driving charge. I was concerned that a second offense drunk driving conviction carried a mandatory five days in jail upfront, but I knew that Loretta had learned from our last court appearance that house arrest was likely for her. Besides, the prosecutor agreed not to object to my request to postpone the sentencing so that Loretta would have time to meet with the psychiatrist. I was fairly confident that more time would mean more progress and that an expert’s diagnosis would help minimize the sentence she would have to endure. Judging by her appearance, time seemed to be on Loretta’s side. <br />At her next court date, Loretta didn’t show up. I was used to clients refusing to come to court when they were supposed to, but Loretta’s absence troubled me more than most. How could she forget about court when I was providing such extra special care for her? How could she sleep in when I had worried about her case last night? Why was I more concerned with her life than she seemed to be? Why wasn’t she building on the progress that she had already made? I checked my messages before court, but heard nothing from her. Luckily, I convinced the judge to not issue a “bench warrant” that would have resulted in Loretta’s arrest, by telling the judge about Loretta’s “condition.” I was disappointed, but still hopeful. <br />When I called Loretta, she answered on the first ring. I wondered how many times she had scrubbed down the phone to be that confident in picking it up. I asked her where she had been but she offered no real explanation. Like a lot of clients, she sort of changed the subject. Rather than pressing her about her reasons for forgetting such an important date, I simply told her about the new court date, stressing that I was pretty sure this continuance would be the last time. “Next time,” I told her, “she’ll probably issue a warrant if you’re not there.” She paused, then told me thank you for the call. Everything still seemed to be on track and I still hoped for a happy ending for Loretta. <br />But I didn’t even make it into the courtroom on her next court date before I realized that the happy ending I imagined for Loretta was not coming true. She was sitting on the bench outside court staring intently ahead, curled into herself like a child refusing to climb into a rollercoaster. Her aunt was standing beside her, pleading with her, “Come on, honey, it’s gunna be o.k.” But Loretta looked oblivious to almost everything but her fear. I thought of what happened to her the last time she was in court and felt guilty for assuming that she had simply blown off her last court date. She wasn’t disrespectful, she was desperate. She wasn’t getting better because a few leads I had thrown her way. Her mental illness was now asserting its dominance. She looked as if she was possessed and was fighting with a demon firmly nestled in her brain. <br />I still thought I could help. I sat beside her and spoke in a quiet, calm voice. I thought I could make a difference, maybe pull her out of her fear a little bit. After all, I had been complimented just last month by a judge who saw me talking to a severely disturbed client. I thought I comforted the afflicted and afflicted the comfortable in my job. I wore used clothing store suits, but I prided myself on being able to handle pressure and difficult people. I wasn’t some silk stocking-clad private practice attorney chasing after dollars. I was a public defender. I didn’t shy away from pressure-packed situations. I kept my cool and defended my clients no matter how badly they smelled or looked. I knew how to handle this, didn’t I? <br />But she didn’t even hear me. I tried my calmest, coolest voice but Loretta just stared straight ahead. She answered my questions but wouldn’t even look in my eyes. I heard her aunt behind me, telling me that she drug Loretta out of her house “so she wouldn’t get a warrant.” Her aunt didn’t know much about obsessive compulsive disorder, but at least she knew how to avoid trouble with the law.<br />I told the prosecutor that Loretta was having trouble and waited outside with her until all the other cases had been dealt with. I did this for Loretta and also for myself. I didn’t want Loretta to have to face a packed courtroom and also didn’t want a packed courtroom to be looking at me when I spoke on her behalf. I wasn’t sure I could maintain my composure when it wsa my turn to talk for her. My hopes were up so high for her that it was difficult to see her this way. I planned on showing the judge how well Loretta was doing, but it was obvious that I couldn’t fool anyone into believing that the woman beside me was doing well. <br />When the prosecutor came into the hallway and told me it was time, I entered the courtroom alone, as if to scout out the territory for my desperately frightened client. The judge asked me if I was ready and looked puzzled about the fact that my client was nowhere to be seen. “She’s out in the hallway, your honor,” I said, looking at the judge over my glasses as if to add on “and you’re not going to believe what you’re about to see.” <br />I went back in the hallway and put my arm on Loretta’s shoulder, then pulled it away remembering that, while this might help most people, it would only make things worse for a person with severe OCD. “You ready?” I asked, pushing open the door so she wouldn’t have to touch it. To my surprise, Loretta seemed to take charge of her fear for a minute, standing up and moving forward. “Yeah, let’s go,” she said. <br />Once we were inside, however, the look of terror returned to her face and she recoiled into herself, reluctantly walking to the bench. When the judge asked me if I had anything to say on Loretta’s behalf for sentencing, I couldn’t think of anything for a moment. Finally, without a clue about what to say, I fell back on what I truly felt. “My biggest fear, judge, is that I won’t be able to make it through this without losing it.” My voice cracked badly and everybody courteously looked at their feet at the sound of a “professional” about to bawl. <br />I don’t remember exactly what I said after this. I know I described how well she looked the last time I saw her and how different, and worse, she looked today. I described what little I knew about OCD and about Trichotillomania, telling the judge that I could not remember a client who deserved more sympathy or less vengeance. I pointed at Loretta and pointed out that she was not even hearing me. It was true. I paused to let the judge see this for herself and, sure enough, the expression on Loretta’s face didn’t change. It was obvious that she was consumed by what was going on inside her head and oblivious to the voices running on in the courtroom around her. <br />I knew, by the look on the judge’s face, that I had said enough. The picture Loretta presented was worth a thousand of my words. <br />When the judge looked into my eyes, she looked to be on the verge of tears as well, or at least fully aware that this was not a typical drunk driving case. When the judge asked him if he had anything to add, the prosecutor was speechless. He didn’t even say “nothing, your honor” for a good five seconds, as if he had forgotten, for a moment, the role he played in this courtroom. Just as suddenly, though, he remembered part of his job. “There is the matter of enhancement, judge. This was charged as a second offense.” <br />I was afraid of this, but I knew it was coming. Because Loretta had been convicted of second offense drunk driving, the law required her to serve five days in jail, even if she was given a sentence of probation. The law was also clear that a person could not be given credit for days that had been spent in jail as a result of other charges. Since Loretta had not served any time in jail on these charges, but had only been sent to jail for violating her probation, she still “owed” the judge more five days in jail. While I knew this, I also knew that, more than any other client, Loretta did not deserve to go to jail. Five days to her would be like five years for most people. She needed to go home, see a good psychiatrist, and get medicated. <br />The judge was a rare example of an understanding, compassionate human being who could separate the real criminals from the afflicted. She was even willing to bend the rules of the justice system if doing so brought about justice. Like me, deep down, she believed that rules were meant to be broken. <br />“Your honor, we are asking you to consider giving Ms. Griffin credit for the jail time she served when she was sentenced to seven days for violating her probation. She obviously isn’t going to be taught any lessons today by having to go to jail. Why don’t we just put her on probation today, give her credit for the time she spent on her last case, and let her go home where she won’t be so afraid? You can order her to be evaluated by one of the psychiatrists she’s previously contacted and to follow any recommendations that they lay out for her. Today, though, she just needs to go home.” <br />The prosecutor spoke next and he, very lawyerly, reminded the judge that she had no choice but to send Loretta to jail. I silently agreed with his legal conclusion, but hoped for something higher. <br />It was rare to find a County Judge who knew the law well and Judge Hendrix was that rare judge. She was smart enough to know when to play dumb. “I think I do have the power to give her credit, Mr. Getty,” the judge said, maintaining a poker face. She knew better than this but also knew that the chances of this prosecutor appealing an exceptional case like this one were slim. Playing dumb allowed the judge to appear as if she truly believed in the lawfulness of the sentence she was imposing. She could have her ruling overturned on appeal, but she wouldn’t be in trouble professionally for refusing to follow the law. <br />The prosecutor let it go. He was compassionate as well and evidently couldn’t press for jail while Loretta still stood, two feet to his left, still oblivious to our words and now staring at the door like a trapped animal looking out a cage door. When the judge heard no further argument from the prosecutor, she announced that Loretta was sentenced to one year of probation. She was ordered to serve five days in jail, but given credit for the time she spent in jail for violating her probation. Loretta also had to pay the minimum fine of $400, and to obtain and follow the recommendations of a psychological evaluation that she was to complete within 30 days. <br />When the judge told Loretta that she was “free to go,” she headed straight for the door without saying a word. She wouldn’t feel free until she got back home and scr=ubbed the filth of the outside world off her hands. <br />I knew the battle was over but that a new one had begun. Now I had to find a psychiatrist who accepted Medicaid, understood trichotillomania, and made house calls to the roughest part of the city.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-60012491020841105202008-03-28T17:34:00.000-07:002008-03-28T17:35:50.651-07:00SeymourSometimes the last people you expect to see in court end up there. During the Fall of my daughter’s third grade year, I proudly went with her one night to a meeting to discuss the school district’s gifted program that she’d just been invited to attend. I distinctly remember the administrator who presented the program. He stood out among the many people who spoke because of his tact, energy and charisma. He fielded tough questions and silly complaints from several cranky parents and skillfully explained the program and its goals. I remember thinking that this forty-something man would probably go far as either an administrator or even a politician. <br /><br />On the way out, I spoke with him briefly and, being the son of a dedicated teacher, I thanked him for his efforts and for giving my daughter a chance to be in the program. He looked at me as if to say, “I’m glad somebody noticed” but no harsh words came to his lips. We shook hands and he went back to dealing with other parents, as several began to crowd around him with more demands and questions. I walked away trusting that my daughter, and the other kids, were in good hands. <br /><br />The next time I saw him several months had passed. This time, though, I wasn’t at school, I was at work. He was in criminal court as a criminal defendant and he was in on a Wednesday, when a lot of the “colorful” cases were scheduled. As soon as I saw him I remembered reading the headline about one of the School District’s administrators getting put on paid leave after he was accused of engaging in lewd conduct and soliciting a lewd act. When I read the headline, I remember thinking to myself that I only knew one administrator and that the person described in the paper, the person who was caught in the park, couldn’t possibly be the man I had met. But here he was. <br /><br />Now that I saw him in court, my parenting instincts suddenly kicked in and I felt mad at him for being a professional educator with a sick side and also felt mad at myself for trusting him in the past and coming to his aid. Was there no one I could trust anymore? Were my instincts about a person’s trustworthiness really that bad? I felt that anger that must drive a mob and I suddenly wanted to drag him into the hallway and personally punish him for passing himself off as someone so high when he was actually just a highly educated lowlife. He was not my client; he was a leader in my daughter’s school system, so I didn’t have to look at with any professional obligation or duty. I could look at him the way a person in the crowd would and I wanted swift, severe justice. I was not without sin, but, nevertheless, I was ready to cast the first stone. <br /><br />Of course, I had only read the headlines at this point and hadn’t seen any of the fine print that spelled out what brought this man before the bench. He stood out in the courtroom, sitting in his double-breasted suit, next to his rather plump, middle-aged wife, , holding her hand like a couple of kids who were newly in love. He didn’t look at all ashamed and seemed either oblivious or immune to the people who stared at him and whispered or pointed as they passed by. In fact, the man looked downright relieved and carefree, like something had recently been drug out into the open and off his back. <br /><br />I had seen a lot of men in court who had been caught in the parks during the late night hours. Up until this day, I had never seen a man, caught in a park, who was looking for a woman. The unwritten rule, that I saw played out on “vice day” in court, was men go to the park to find men and go to the streets to find women. Because of this rule and because I read that he was picked up in the park, I assumed that this man was seeking a gay lover. That’s what surprised me about the handholding and the carefree look. I assumed this case resulted in his being both fired and “outed.” <br /><br />But the truth was very surprising. When the judge called out his name and he let go of his wife’s hand to come before the judge to plead guilty to lewd conduct, an unexpected story unfolded. The prosecutor, as part of a defendant’s plea of guilty or no contest, is required to provide a factual basis, or a summary of how the defendant’s actions met the elements of the crime charged. The prosecutor, who often tired to play amateur comedian as he summarized police reports, said “the defendant paid $40 for something you can see on Showtime every night of the week.” He went on to say that this man approached a female undercover cop at night in the park and asked her how much it would cost to look at her bare breasts. Evidently he didn’t even ask to touch, just to look, and he didn’t know, like most other late night park dwellers that a woman in the park was quite obviously an undercover cop. <br /><br />Any real female prostitute would not waste her time in a park where anyone who stayed past midnight was either walking their dog or looking for anything but a female. Evidently this was one of this man’s first forays into the late night Omaha pervert scene because he hadn’t yet picked up the street or park smarts to know where to begin looking for what he wanted. His lame effort and easy capture made him seem both innocent and immoral, both pathetic and perverted. <br /><br />When I heard what really happened, I was ashamed for him and ashamed of the way I reacted. I was always criticizing judges and prosecutors for believing he “headlines” and assuming the worst when it was always important to read the fine print in every case. What had looked at first like a bizarre, perverted rendezvous in the park was really just a weak attempt at seeing some live, soft-core porn. I’m not saying he was innocent or that he shouldn’t have lost his job over this behavior, only that this seemed like a silly, pathetic cry for sex or help or both by a probably overworked and undersexed, seemingly squeaky clean, school official. <br /><br />The judge gave him a small fine after the man’s attorney explained that the out of court penalties, such as losing his job or seeing his face on the news, had served as punishment already. The attorney went on to explain that this man would likely have to move to another town, start at a much lower level and wait for the cruel rumors to follow him and be whispered behind his back. I wondered if he could find a job at all, given that rumors and headlines will often travel around the world before the truth, or the fine print, gets its shoes on. <br /><br />In the hallway, I saw the man sit on the nearest bench and hug his wife as both cried, seemingly out of relief and happiness. Unlike most white collar criminals who came into Douglas County Court and exited seconds after they were let go, this man seemed in no hurry to hide from the gawkers. Now that his job was gone and his wife was still beside him, he looked depressurized, relieved and even serene. He looked like he had been transformed from excessively driven and superficial to laid back and real. <br /><br />Of course, all of my impressions were just that, guesses from a distance. But trial courts are built on the idea that a judge or jury can accurately judge guilt or innocence by looking in the eyes and hearing the words of the witnesses brought before them. I was often wrong, as I was when I first met this man, but I still trusted my instincts and ability to judge people’s sincerity. Looking in this man’s face, he seemed a little ashamed and a lot relieved. Perhaps his look of relief resulted from the fact that he stayed out of jail, but that didn’t explain why he looked so relaxed before he went before the judge. <br /><br />How he went from a successful, stressed out school administrator to an affectionate, unemployed man sitting on a public bench in the courthouse is probably an interesting story in itself. I would probably never get to hear it, though, because I was pretty sure I would never see this man again. I hope he landed on his feet and dealt with whatever it was that brought him into the park that night and into court a few months later. I also hope that he hung on to whatever it was that made him look relieved and happy, with his wife, outside the courtroom. It would be a waste if this man’s talents were not helping teachers in classrooms but it would also be a shame if he were working with kids and acting so strangely. For the kids’ sake, I hope he got both his professional and his personal lives in order. They deserve better leaders and their leaders should know better or go into something else.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-11703359855273661522008-03-28T17:33:00.000-07:002008-03-28T17:34:28.731-07:00GodfreyI 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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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.<br /><br />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. <br /><br />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. <br /><br />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.” <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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.” <br /><br />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.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-68886561767122913462008-03-28T17:32:00.002-07:002008-03-28T17:33:33.935-07:00RobertObviously, 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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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? <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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.” <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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.<br /><br />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.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-79788983935600655642008-03-28T17:32:00.001-07:002008-03-28T17:32:40.974-07:00DavidMy 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?” <br />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?” <br />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 <br />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. <br />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.<br /><br />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. <br />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.<br />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. <br />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. <br />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. <br />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. <br />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. <br />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. <br />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. <br />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.<br /><br />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. <br />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. <br />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. <br />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. <br />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. <br />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. <br />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. <br />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. <br />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. <br />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. <br />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. <br />“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.” <br />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.”<br />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. <br />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. <br />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. <br />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. <br />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. <br />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? <br />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.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-86954433337102757762008-03-28T17:28:00.001-07:002008-03-28T17:28:43.830-07:00RandyLike all my cases, Randy’s began when I found a new manila file folder in my mailbox the day after he made his first appearance in court. At this hearing, he would be informed of his rights, the possible penalties and then be asked how he wanted to plead. If he plead not guilty and was then found to be “indigent” the judge would appoint a public defender to represent him and then set a bond to assure his appearance at trial. My clients came in two basic varieties: those in jail who could not post their bond and were stuck there waiting for trial or an early plea, and those who were out of jail, having either posted their bonds or been released on their own recognizance.<br />Since I handled only misdemeanor cases, only about one out of four clients that I represented was in jail. Although some of my “non-jail clients” would end up being sent there eventually, there was simply not enough room in jail to hold all the accused citizens as they awaited trial. Evidently Randy’s prior record was such that he did not appear to be a flight risk and the judge had not set a bond for him to post to get out of jail. <br />By the time I received Randy’s file, he had already appeared at our office, set up an appointment with me two weeks in the future, and been sent a form letter reminding him of this appointment. Usually about half of my clients made it to their first appointment, and the other half either left voice mail messages asking me to call them back or else actually listened to my voice mail message that instructed them about how to call and reschedule their appointment. Many of my clients, either because they were poor, overwhelmed or just irresponsible, had trouble keeping track of dates, times and obligations. I often wished I could hand out day planners because many of my clients made small problems worse by not taking the time to meet with me before court or missed court and were issued warrants on new charges of “failure to appear.” <br />Before Randy’s scheduled appointment, I had ordered, copied and reviewed the police report detailing his being cited for “open container” of alcohol. I had read the officer’s version, in other words, but hadn’t heard Randy’s yet. I had read so many reports at this point that I could picture the officers and the locations pretty well. I was getting also getting better at spotting issues to raise at trial, or through pretrial motions, such as questionable stops, seemingly illegal searches, or statements that could be excluded under the Miranda case. that is dramatized nearly every night on network television cop shows. <br />As I scanned the police report detailing Randy’s case, however, I saw little to fight against and plenty to laugh about. Looking for mistakes, issues and defenses my clients could utilize was my job, but finding something to laugh at made my job more bearable and even entertaining.<br />The officer who arrested Randy described seeing him driving in the right hand lane in a fairly rough neighborhood at about ten o’clock at night, on “routine patrol.” Suddenly, Randy passed him on the left, speeding and openly drinking from a silver can of beer. As the officer turned on his lights to pull Randy over, he noticed the out of town plates, which, because the high number designating the county the plates were licensed in, indicated that Randy was from a rural area of Nebraska, a long way from the inner city of Omaha. <br />When the officer got to Randy’s truck, Randy still had his beer in his hand and was surprised, but not mad, at being pulled over. Randy was puzzled when the officer told him he’d seen Randy drinking the beer, not because he denied it but because he didn’t know this was against the law. “That’s against the law?” Randy said. “Well, not up in Wausau it’s not. I do it all the time.” Wausau is a small town in Northeast Nebraska and, of course, it is against the law to drink while driving there, but evidently Randy had gotten away with it there and thought it must be o.k. in Omaha too. <br />The cop took Randy’s beer, poured it out (probably rolling his eyes as he did it), and then went back to his cruiser to write Randy a ticket while running a check on his license and registration. As the cop was writing the ticket, he looked up and was surprised to see Randy patiently waiting in his pickup, casually sipping from another silver can of beer! Evidently Randy either knew he was already in trouble for doing this or else just figured he was not driving anymore and that it must be o.k. to drink while parked and waiting. Perhaps he was slowly disposing of the evidence? <br />At this point, the officer walked back to the truck and asked Randy what he thinks he is doing. Randy was not belligerent, but explained that he was “just thirsty” and once again acts surprised to find out that this too is against the law in Omaha. This time, though, the officer orders Randy out of the truck to perform field sobriety tests, to determine how many times Randy has broken this law tonight and to find out if he’s broken another law called driving under the influence. Randy passed these tests as quickly as he’d passed the cop earlier on the street and the officer, content that Randy has a lot more heart than brains, quickly sends Randy on his way with a ticket and instructions to get back to Wausau before he opens any more beers or before he gets himself shot.<br />I was anxious to meet Randy and I knew that I could set up a hearing and have him plead guilty before a judge who would (silently) laugh as hard as I had and let Randy go back to Wausau with a small fine. Of course, the decision on whether to have a trial or to plead guilty would be Randy’s not mine, but I didn’t see any defenses for Randy to the crime of having an open container within reach to the driver of an automobile. <br />However Randy didn’t make it to his appointment. I waited in court for him on his trial date and spoke with his mother who had driven all the way from Wausau to give me a message. Randy did not have a phone and a big snowstorm left him stranded at his ranch. I asked the judge to continue the case, to give Randy a chance to appear, but knew the judge would simply issue a warrant for Randy’s arrest and leave it up to me to bring Randy back to court to cancel the warrant. I didn’t blame the judge. So many people missed court that judges grew sick of excuses. Unless an attorney could provide a very good excuse on the date of trial, it was difficult to have a case postponed, especially when the state’s witnesses were already in court and ready for the trial. <br />I told Randy’s mother to have him call me or drive down to meet with me to get the warrant cancelled. I knew that if he called me and we arranged a hearing before the right judge, Randy could be sentenced to a small fine and be given time to pay it. I also knew that if he didn’t take care of this warrant, getting a speeding ticket in the future could result in a few nights in jail if he couldn’t post a bond, as the check of his license would show the active warrant from Omaha. <br />His mother wasn’t worried about this, though. She told me that he would be coming back to Omaha in the Spring and that he would get in touch with me then. Evidently Randy came to Omaha quite regularly. It was then that I realized what probably brought Randy back to Omaha several times a year. Randy was picked up in a rough neighborhood where drugs, crime and trouble could be found easily. I was worried about what could happen to such a naïve, obviously country-raised person in place like this. I assumed that after his brush with the law and after his warrant had been issued, that Randy would stay in his safe place in Wausau. <br />But there was something you could find in some parts of Omaha that you couldn’t find in Wausau and that this was probably what kept calling Randy back. You could find guns and drugs in the neighborhood where Randy was picked up, but you could also find girls, or even guys, who would do just about anything you wanted for $20 to $30. You would also catch anything or everything from these people who were so blinded by addiction that fear of things like contagious diseases was not of much concern. <br />Because of my job, I was acquainted with many women and a few men who made their “living” this way as I defended them, usually unsuccessfully, on prostitution charges. I also knew that a lot of their “Johns” were lonely white men, like Randy, from the “sticks” who, like the wealthy shoppers, drove to Omaha from their homes across the state for the larger selection of things that could be purchased here. <br />At first, I wondered what brought this country boy to the crack-infested streets of the city, but, after I thought about, I could make a pretty good guess. Having realized what had most likely brought Randy here in the first place, I came to agree with his mother. Randy would be back in the Spring, just as she predicted. I just hoped he came to see me first, so I help him cancel his warrant before he ended up in jail. <br />People like Randy were often picked up in prostitution stings since their hormones and lack of street smarts made them easy targets for undercover police officers. Unfortunately, this was not the worst thing that could happen to Randy as this same combination of horniness and stupidity also made them easy targets for thieves and even more dangerous criminals. Maybe when Randy came back in the Spring he would be better off getting picked up by the police before he went “shopping.” Sometimes when you shop in parts of the city where Randy was picked up, you end up getting more than you bargained for.David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-1144094944078576692006-04-03T13:08:00.000-07:002008-07-23T10:35:46.941-07:00Terrell (updated below)In Omaha, ninety-percent of the attorneys are graduates of Creighton University School of Law, a local Catholic University just a few blocks from the Courthouse in downtown Omaha. Creighton made it to the N.C.A.A. College Basketball tournament in 2002, but they weren’t expected to get very far.<br />The first round was played on a Wednesday afternoon and the library of the Public Defender’s office was packed with a few female and almost every male attorney, surrounding the t.v. and watching the game on E.S.P.N. The room thinned out when court started at 1:00 p.m., just as the game went into the first overtime period. I stuck around, with a few of my coworkers, since I was lucky enough to have no scheduled court appearances that afternoon. <br />Creighton jumped out to an early lead in overtime, but the other team came back quickly. Things looked bleak for Creighton, though, when star player Kyle Korver fouled out. Even without their star, Creighton hung in the game and tied it up to send it into double overtime. With Korver out, all heads turned to Terrell Taylor, an excellent player who had demonstrated extreme talent but who had also been benched periodically throughout the year by coach Dana Altman for undisclosed “disciplinary problems.” <br />Taylor played very well and kept Creighton close, but Florida held the lead throughout most of the second overtime period. Spirits were down in our library as the few remaining people began to suspect that, without Korver, the lead would hold and we’d all be talking about other teams and next year. <br />With less than a minute left, Florida led by two and had the ball, but turned it over without scoring, giving Creighton the last twenty seconds to tie or win. Creighton couldn’t set up the shot, however, and the ball was knocked out of bounds, off Florida, with just three seconds left. One last, slim chance for a team that had been outplayed and was without its star.<br />If you watched the news that night, you probably saw what happened because it showed up on every highlight reel on every sports channel and every network that evening. Terrell Taylor, back in his hometown of Chicago, took the inbounds pass. With Jordanesque quickness, and with two people on him, he drove right, then left, hitting an off-balance, long three pointer for the win, just as time expired. Even the quietest secretaries were high-fiving each other in our library. We were just co-workers, but watching this perfect ending unfold was a better climax than we’d ever seen from Hollywood. Being there had to have been incredible, but just being able to watch this moment in real time was magical. <br /><br />The local news was filled with images of Terrell Taylor’s shot and all of Omaha was talking about Creighton’s and Taylor’s miracle. Later, ESPN’s sportscenter led off their first round coverage with a clip of the shot and then spent several minutes covering the story behind it. Terrell described growing up in Chicago, idolizing Michael Jordan and even driving by Jordan’s statue as Terrell pulled up with his team to play, in Jordan’s house, for the first time. I remember Taylor’s voice most of all, carrying over the dozen microphones in his face, describing how he always wanted to be “like Mike” and finally got a chance to do it in his first NCAA tournament. <br /><br />The moment was incredible, but Creighton’s luck didn’t hold for long They lost by a bunch in the second round, but the memory of Taylor’s shot hung around Omaha, giving us a consolation prize for this year and something to look forward to next year, as Taylor came back for his senior season. <br /><br />------<br /><br />A few weeks later, I was waiting in Courtroom 26 for one of my clients to be sentenced by Judge Swartz. I was making some notes in the file and casually whispering to the other attorneys when the judge called out, “State of Nebraska versus Terrell Taylor.” I didn’t look up, not because I didn’t recognize the name, but because I was a little preoccupied and didn’t stop to consider that it could be the same person. <br /><br />Then I heard the voice, the same voice I’d heard on ESPN a few weeks earlier, and realized this was “him.” He was in court to cancel two warrants and to be sentenced on some relatively minor charges, including driving under suspension and failure to appear in court. I listened in and heard that Taylor had managed to make this relatively small problem much bigger by getting in more trouble while he was on Judge Stephen Swartz’s “watch.” Apparently, Judge Swartz had placed Terrell on probation several months ago, meaning that the new charges he was facing could possibly get him in “double trouble” by causing him to both face new charges and to face a possible violation of probation for engaging in unlawful conduct while on probation. <br /><br />Judge Swartz was known as a good trial judge but a harsh one for sentencing. He was a rare example, at least in Douglas County Court, of a judge who still believed in making the prosecution prove its case beyond a reasonable doubt. If they didn’t, he would find you not guilty, no matter the facts, the political winds, or what he thought of you personally. But while Judge Swartz could be the best judge your client could hope for if a case went to trial, he was not the judge you wanted your client in front of if the person could not follow a few simple rules. Judge Swartz took the law and the concept of beyond a reasonable doubt seriously, but, once he found you guilty, if you were lucky enough to be placed on probation, you either stayed out of trouble or you went to jail.<br /><br />Evidently Judge Swartz had given Taylor a chance at probation several months back, had ordered him to get an alcohol evaluation, to refrain from drinking or using drugs and to refrain from unlawful conduct. Now Taylor was having to explain why he received new charges that involved driving during suspension, possession of marijuana and driving while intoxicated, and why he had missed the court dates for these charges. It wasn’t hard for him to explain why it had been difficult to be in court, since everyone knew he’d been on the court a lot for the last several months of basketball season. However, the fact that he was busy with basketball was sort of a double-edged sword because while it explained why he missed court, it didn’t excuse the fact that new charges had been filed that involved both drugs and alcohol. Terrell could say that he’d been busy with basketball, but the judge could counter by saying “you weren’t too busy to get drive drunk or to smoke marijuana though, were you?”<br /><br />Terrell had a private lawyer and had done a few things (besides win the game) that I knew Judge Swartz would like. He had an alcohol evaluation in his hand (I wondered when he’d had time to do it) and wasn’t making up the type of lame excuses that I knew Judge Swartz hated. Terrell’s apologies and willingness to take his punishment seemed to put his own “hat in his hand,” so to speak, and I knew that this, and the alcohol evaluation, were the only thing keeping him from going to jail that day. <br /><br />Judge Swartz was a very smart judge, and while I often disagreed with his harsh attitude toward people with chemical dependency problems, I respected his thorough understanding of the law and his willingness to work hard to interpret and dispense it. He would "max you out" in a heartbeat if he thought you deserved it, but. unlike some other ex-prosecutors on the bench, he wouldn’t take shortcuts in reaching that conclusion. <br /><br />For Terrell, this looked like bad news because he had not followed a few simple rules. Judge Swartz wouldn’t care about Terrell’s recent fifteen minutes of fame, wouldn’t care how the team would fare, and wouldn’t care how the public would react. If he thought a person deserved to go to jail, they went there, no matter how much money they made, political pull they had, or athletic ability they demonstrated. He was the polar opposite of a rubber stamp and would politely listen to both sides, taking in all the evidence, and then impose whatever verdict or punishment the evidence warranted. He would find the scummiest defendant not guilty if the evidence wasn’t’ beyond a reasonable doubt and could also send the star player to jail, just before the big game, if he thought the defendant deserved it. <br /><br />Judge Swartz tore into Terrell, telling him he watched the game, saw the amazing shot and saw the replay on ESPN. “But the whole time, Mr. Taylor” Judge Swartz cautioned, “I wondered if everybody watching would have been so amazed if the had known what I knew.” “Would they have fallen all over you if they’d known, like me, that you were in trouble, back in Omaha, were maybe on your way to jail, because you couldn’t stop driving when your license was suspended, couldn’t stop drinking when the court told you to, and couldn’t quit smoking marijuana when it’s against the law and against your probation for you to do so.”<br /><br />From many intense moments before him, with clients by my side, I knew Judge Swartz well enough to know that what really upset him wasn’t the driving or the missed court dates, but the fact that Terrell had the nerve to get a drunk driving charge while he was on Judge Swartz’ probation. “Not only did you not do what I told you to, which was to get your license reinstated, you went out and got drunk and drove and got caught and missed court and now you want me to give you another chance,” Judge Swartz would have intoned. <br /><br />This stunt, as Swartz would see it, was not only an indication of a bad attitude, but was like thumbing your nose at the court and then asking for a favor. Judge Swartz had no sympathy for those with alcohol problems believed that jail was a good alternative to treatment, especially when a defendant didn’t take advantage of a chance at probation. Unless a defendant gave him a good reason to believe in probation, jail was just a quick signature away if a person violated their probation. <br /><br />Today was no exception. Terrell didn’t go to jail, but he may have wished he would have. The fact that he had an evaluation saved him from a swift, severe punishment. Since Terrell was pleading guilty to violating his probation, he could have gotten up to six months in jail, just as he could have gotten for the original charges. Judge Swartz crafted a new probation with just a few simple rules and a rough ending. Terrell was ordered to stay away from drugs and alcohol, and be tested for this , for the next year. He was also ordered to stay out of trouble and to get his license reinstated. Rather than send him to jail today, Judge Swartz sentenced Taylor to begin serving thirty days in jail on a date about eleven months in the future: March 1, 2003. This was known as a “show cause” sentence, and it could be waived by the judge, but the defendant had to “show cause” why he shouldn’t go to jail when he came to court that day. <br /><br />“It’s really simple, Mr. Taylor,” Judge Swartz said. “You either stay out of trouble the rest of this year and the first part of next year, or you miss the thing that you and your team dream of, the Big Dance, the NCAA tournament.” “Don’t let your team down, don’t let yourself down, Mr. Taylor.”<br /><br />“You had your fifteen minutes of fame, Mr. Taylor, and I was amazed at your talent, the body control you had, the way you handled yourself on the court. I don’t know if that was just a gift or if it was something from your brain or what, but it was amazing to watch. Basketball will be over someday, though, and you’ll have to live in this world just like everybody else. We know you’re better than almost everybody else on the basketball court, but in this court, you’re no different than the rest of us and the same rules apply to you that apply to me and everybody else in this room. So you’re not going to jail today, but I’m giving you the keys to your own jail cell. If you stay out of trouble and tget it together off the court, you’ll be playing on the court next year. If you don’t, you won’t. It’s up to you.”<br /><br />With that, it was over and Terrell Taylor walked out of court with his attorney. At the time, I wondered if Terrell would be able to live up to these rules and also wondered if Judge Swartz would be able to follow through with this promise next year, especially if it looked like the local team would be getting some national exposure. But I never got to find out. Terrell Taylor transferred to another school over the summer and undoubtedly ignored the requirements of his probation. Because of the transfer, he had to sit out of basketball for a year. Creighton did well the next year, even without Terrell Taylor. Although no announcers called out Terrell’s name during the month of March, I heard it one more time. I was back in courtroom 26 on March 1, 2003 when Judge Swartz called out Terrell’s name. Of course, he wasn’t anywhere near Nebraska, but Judge Swartz had sentenced him to appear in court on that day to show cause why he shouldn’t go to jail. Since he wasn’t there, and thus wasn’t able to show anything, the Judge ordered him to serve the thirty days and issued a warrant for his arrest. I knew the warrant would stay active for two or three years, meaning that if Terrell Taylor ever paid a visit to or played a game in Nebraska, he’d end up staying a little longer than he imagined.<br /><br /><span style="font-weight:bold;">UPDATE</span>: <br />This post has been up for years, but hasn't received much attention until someone commented on it at the Bluejay Cafe. Reading the comments, I see they are right and there are probably many inaccuracies regarding who Creighton played (it was Florida and I had originally put Northern Illinois) and even about the descriptions of the game. I'm not a basketball fan but wish I was as I miss out on a lot of March Madness fun every year, having not followed college or pro basketball all year. <br /><br />I hadn't planned on writing about the game until months later when I heard Taylor's voice in court so I described the game as best as I could, which wasn't very accurate. If I was writing on a sports blog and not in a journal of an (ex) public defender I would have double checked the game descriptions. Actually, I probably should have anyway and shouldn't have tried to describe an event months later. As I'm a big football and baseball fan, I can see how inaccurate descriptions would have annoyed me and made me question the author's credibility. <br /><br />Still, the point wasn't to illustrate the game as much as the court hearing that came later. I wrote about that, too, from memory because, guess what, as a p.d. I couldn't afford to pay for the transcription costs to get exact quotes. I described it as I remember it, hopefully better than I did the game. <br /><br />So, sorry if I tried to sound like both a basketball and a Creighton fan when I really watch about one game a year. I wanted to tell the story about what happened to Terrell in Court but messed up in the way I described what he did on the court. <br /><br />I was hoping for a more positive reaction, but shouldn't have expected either bloggers or hardcore college basketball fans to hold back on inaccurate descriptions. But I'm glad somebody's reading this stuff!<br /><br />(If you have any corrections you want me to fix, leave me a comment and I'll make the change. ) <br /><br /><br />Copyright, David Tarrell, All Rights Reserved, 2006David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-1144094881591994802006-04-03T13:07:00.000-07:002006-04-03T13:11:44.223-07:00MarioMario had short, dark hair and a small diamond earring that caught my eye when I called out his name in our reception area. He followed me back to my office and, when I pulled his file and looked at the computer system, I saw that he was charged with D.U.I. second offense, wrong way on a one way street, and failure to appear. As we talked about who he was and how he came to be stopped and arrested for D.U.I., I saw that Mario was very self-confident, but not quite cocky, at least not now. He was about twenty-five years old, a native of Mexico, and had a well-paying but tough job as a supervisor at a local packing plant. <br />It’s unlawful for me to inform the court if I learn that my clients are not truly “indigent,” or wealthy enough to be able to afford their own lawyer. The theory is that it would interfere with my duty to represent their legal interests if I was also checking their finances to see if they really qualified for my “free” legal advice. It might also cause my clients to hide things from me and, as a society, we want to encourage people to talk openly to their lawyers, without fear of being “ratted out.” I wondered, though, if Mario truly qualified for a public defender. This wasn’t because of the way he dressed- although he had on brand new name brand shoes and the kind of clothes that kids get held up for. It was because I wasn’t used to seeing clients with well-paying jobs, who were called “boss” by their employees. Mario was young, but he’d held this job for five years and risen up the ladder quickly. <br />I was used to seeing my “indigent” clients dressed in expensive, name brand clothes, the kind with the designer’s name boldly displayed across the front. While this was frustrating to a public defender who bought all of his suits secondhand, I knew that a name brand shirt didn’t mean a client wasn’t truly poor. Somehow a lot of my clients thought that a $60 shirt was what they really needed, instead of a license plate renewal or an insurance policy for their car. I saw a lot of clients who couldn’t afford a $500 bond, but had $500 worth of jewelry and clothes in their property at the jail. It wasn’t that they were secretly rich, in most cases, they just chose to wear their money, literally, on their shirt sleeves. At least I hoped my clients truly paid for and didn’t steal these clothes. <br />Mario was single with no kids, which meant that he was even less indigent than most of my clients who had children to support. He spoke with no trace of an accent and told me he was “legal” when I asked him if he was a U.S. citizen. I’m required to ask this question of all my clients, since their immigration status can be affected by convictions for certain crimes. I took Mario’s “legal” answer to be a no and told him, as I’m required to do, that his immigration status could change if he was convicted of certain crimes. He didn’t seem worried about this and told me, again, that he was “legal.” I explained that anything he told me was a secret, that I could lose my bar license if I told anyone about it, and Mario told me that he was not yet a citizen but that he’d lived in Texas since he was little. He was now a legal resident with a valid “green card.” <br />As we reviewed the police reports I explained that there was very little to fight about in his case. The police didn’t always do this, but this time the cops thoroughly documented Mario’s poor performance on field sobriety tests and received a breath test that was well above the legal limit. Mario was on the way home from a barbecue, at a family member’s house, got confused in an unfamiliar area, and turned the wrong way down a one-way street. As soon as he realized he was going the wrong way, the police cruiser lights came on and the smell of alcohol led to an arrest for driving while under the influence or D.U.I. <br />Mario was charged with second offense D.U.I., which meant that he had to spend a minimum of two days in jail if he were placed on probation and at least thirty if he did not. I knew probation was likely since Mario had a minimal record, a good job and had generally cooperate with the police during his arrest. Mario was very concerned with keeping his job and very worried about how this misdemeanor charge would affect his job and his ability to drive legally in the future. I was thrilled to have a client who actually wanted to participate in their own “treatment” and liked Mario’s attitude. He seemed smart, motivated and hard-working, and I loved to help people like this get out of trouble and on with their productive lives. <br />Before Mario left my office, I arranged an “early plea” hearing date about two weeks in the future. This way I could pick a judge who was likely to give Mario probation. In the meantime, Mario could make arrangements with his employer to miss a couple days of work. I told him to get an alcohol evaluation, which cost about $100, and attend a few A.A. meetings, which cost $1 if he chose to put money in the hat they passed. These two steps were helpful to let the judge know Mario was serious about wanting to stop drinking and driving and to show that judge that Mario was capable of helping himself without being told. I had learned that a little work before probation helped to lessen its requirements and helped insure that a defendant was serious enough to complete it. <br />When I remarked that he could even get a sponsor through A.A. if he thought he had a problem with alcohol, Mario blurted out, “”Oh I know I have a problem.” This surprised me because I had talked to hundreds of seemingly hard core drunks whose lives had crumbled but who still believed, in the face of overwhelming evidence, that they didn’t have a problem. It was rare to see a person who seemed “together” and who also realized what the source of his legal problems was. It wasn’t my job to decide- and I wasn’t capable of determining- whether Mario was an alcoholic. But if he believed he was, I was going to help him and not argue with him. I didn’t have time to help him much myself, but if this young, proud, slightly-guarded Mexican-American sitting before me wanted help, I could tell him where to get it. Since few of my clients asked for this type of help, and even fewer seemed, like Mario, capable of making the most of it, I decided Mario was worth investing extra energy in. To hear him admit to this middle aged, balding gringo in a tie that he had an embarrassing but common problem made me trust him, want to fight for him, and want to see him stay out of trouble. <br />As we shook hands, I was reminded how conveying respect for a person, through handshakes, body language and general respect, could allow two strangers to trust each other in just a few short minutes. As he left, the smile on his face told me he trusted me and trusted my ability to help him. I would have felt a lot of pressure if I was not fairly sure that the judge would see what I saw- a smart young man who truly wanted help. <br />Two weeks later, at his “early plea” hearing, Mario and I talked in the hallway outside the courtroom. He was very worried about having to go to jail that day and about how his sentence would affect his job at Nebraska Beef. I was a little surprised at this because I’d already explained that two days in jail were almost inevitable. He muttered something about missing too much work lately and wondered if there wasn’t a way to do this without having to miss any more. I told him I would see what I could do. Maybe the judge would allow “work release” and he could go back to work today. What I hadn’t told Mario was that two days “in jail” didn’t necessarily mean wearing an orange jumpsuit. The jails were so full and the D.U.I. cases so common, that it wasn’t unusual for a client sentenced to two days to complete these two days on “house arrest” (at home) or on “work release” (in a less-restrictive setting at night and at work during the day.). I hadn’t told him this because it wasn’t guaranteed and it was always better to surprise a client with good news than with bad. Mario’s request was possible, he just didn’t know this yet, and the fact that he expected this possibility surprised me. His request didn’t upset me though. I was used to clients with unreasonable expectations. Most of the time I ignored these demands as the natural product of desperate people. They knew they were facing severe consequences; they were just so far down that they hoped for a break, even when they knew it was unlikely. <br />It wasn’t unusual for my clients to have other court case pending either. But it was important for me to know what these other cases involved so I could “play their hand” in the best possible way. For example, if Mario had new D.U.I. charges, I could help him tremendously by scheduling the cases for a plea on the same day. That way he could be facing two second offense D.U.I’s, with a potential license suspension of one year, instead of a third offense D.U.I. with a potential fifteen year license suspension. I could only help him if I knew the whole story, and if I didn’t he could be in a lot more trouble and I told him this when I asked him what new charges he faced. He started to tell me, then stopped. He said it wasn’t here in Omaha, it was down in Kansas, and he’d talk to me about it after court. Knowing this, I was comfortable going ahead with Mario’s plea. The chances of helping his Kansas case through the way we “played” this one or of Kansas even finding out about this one, were slim. Two bureaucracies rarely work together quickly, in other words. <br />Mario was placed on probation, as we both hoped and expected. He was fined $500 and was ordered to serve two days “in jail” (on work release) beginning the following Monday. He walked out of the courtroom a temporarily free man with a fairly bright future. He had gotten a good deal: a free lawyer, a chance at probation after his second D.U.I. in three years, and he hadn’t missed more than a day of work. I was optimistic about his chances on probation and optimistic about him as a potential citizen of the United States. He had made some mistakes, but his two D.U.I. convictions still totaled less than the President (1) and the Vice President’s (2) total number of drunk driving convictions. I thought Mario would successfully complete his probation and would probably become a citizen soon afterward. He seemed well on the way to addressing his alcohol problem and capable of taking care of himself in the future. In a nation formed by immigrants and populated by many people with substance abuse problems, such a person would made a good addition, I believed. <br />In the hallway, Mario asked me if I could help him with the charges he faced in Kansas. “I got picked up in Kansas last week and spent a couple days in jail. That’s why I couldn’t miss work anymore,” he said as he pulled out a crumpled piece of paper. He told me it was a tiny town, Russell, and laughed when I remarked that Bob Dole was born there. As I unfolded the paper, the grin on Mario’s face remained, but the feeling of accomplishment inside me melted away. The paper was a federal indictment, from Federal Court in Kansas, charging Mario with possession of cocaine with intent to deliver. I saw that his bond had been set at $5000 cash and that he had posted it. The fact that my “indigent” client could post such a bond didn’t shock me as much as the amount of cocaine allegedly found in his possession: 2.75 pounds. When I saw the quantity of drugs I couldn’t believe they let Mario out of jail for this relatively low amount of money. I also couldn’t believe that Mario was still worried about getting probation, and not missing work, for what was now a minor, almost insignificant, misdemeanor charge. I suddenly realized the work I had done Mario was like a doctor bandaging a cut on a man doomed to walk the plank. Mario would never finish probation in Omaha and, wouldn’t have trouble with staying sober since booze was hard to come by in federal prison. There was a hearing scheduled at the end of next week where Mario was scheduled to enter a plea of either guilty or not guilty. <br />As I read the paper, Mario said something about driving his car down to Texas with a friend, getting pulled over for speeding and then letting the officer search the car after being asked. He said he didn’t’ think the state trooper would look in the glove box and thought he’d get in more trouble if he didn’t agree to let the trooper search his car. They hadn’t found all the coke yet, he said. More was hidden in the trunk, but nobody said anything about that to him thus far. <br />I worked on misdemeanors and knew only enough about federal criminal law to get myself in trouble. But I did know that the federal sentencing guidelines mandated sentences that were sometimes described in decades and that federal criminal defense work is often described as a “race to the prosecutor’s office” as favors are given to defendants who “talk.” Before long Mario would be faced with the choice of whether to inform on his friends (now more appropriately called his “former friends”) in exchange for a lesser sentence. Since he wasn’t a citizen, deportation (or “removal” as it’s now called) would probably be inevitable if he was convicted of cocaine possession. In other words, Mario’s likely future was moral dilemmas, a long prison term, and a one-way trip back to Mexico. <br />As my eyes looked again at the paper, and these thoughts rushed to my brain, Mario still smiled, as if he had just gotten one case down and had one to go. He asked me if I could defend him on these other charges (he even offered to pay me) and I told him that not only was I not allowed to proactive in Kansas, but that he would want someone with more experience than me. I was already shocked by what I was reading, but Mario’s next question made my jaw drop. Should he fight these charges with an attorney or just plead guilty? I knew that even with an attorney his chances looked terrible and that “just pleading guilty” would be like fighting terminal cancer with Tylenol. <br />I should have told him this, should have told him that he was in for the fight of his life and that he could go to prison for almost as long as he’d been alive. But I didn’t. His girlfriend was with him and they seemed so hopeful, so optimistic. I knew he’d go back to Kansas and likely face the end of his life as he now knew it. I knew that at the end of that car ride, someone would have to break this news to him, but I didn’t want to be the one. Ethically, as Mario’s lawyer, I should probably have laid it on the line for him right then, so that he knew what he was facing. But I couldn’t ruin today for him, when it had started out so good and when tomorrow seemed so bleak. I quickly decided to let Mario and his girlfriend have today to themselves and I “passed the buck” to his future attorney to have to tell him the tragic news. <br />I told him to go to Kansas City right away, to find an attorney who specialized in federal criminal defense work, and not to get his hopes up. When he heard this last comment, he looked at me strangely, as if I must not have known what I was talking about. He promised me he would get on this right away, but he said it like a teenager telling his dad he’ll check the oil. He said he was even willing to spend the whole $5000 “if that’s what it takes” and seemed impressed to have this much money to talk about. I knew, though, that while that was a lot of money to a public defender or a packing house supervisor, it wouldn’t impress anyone where Mario was going. <br />I was like a doctor who realizes his patient has an incurable disease, a disease the patient hasn’t even felt yet. I knew his current life would be virtually over soon, that this seemingly hard-working, vibrant, confident immigrant would probably be enjoying one of his last few weekends in which he had both his freedom and his youth. Should I have taken him in the corner, grabbed him by the shirt and told him to run back to Mexico and forget about the five grand? I didn’t. I couldn’t ethically advise someone to disobey a court order to appear and I didn’t want to advise someone about a case until I knew all the facts and thus all their possible defenses. From what I knew, Mario’s future looked bleak, and all I told him was to find another lawyer, quickly, so he could begin to prepare for this sobering future. <br />Maybe I should have told Mario more about the extent of his problems. But looking at his naïve face, with his beautiful, smiling girlfriend in the background, I just couldn’t. As a professional I should have, but as a person I decided not to. I knew this weekend, he’d be with his family, just like he was when he got his D.U.I. charge, and that he’d be having a few beers as he got ready for jail on Monday and for what he thought would be a long probation term without alcohol. I knew he would be meeting another attorney soon and that the stark reality of his federal charges would be setting in soon enough. So I told him I was serious about his getting in touch with an attorney soon and I left it at that. He thanked me, we shook hands, and he said he really appreciated my help. As I walked away, I said my traditional “good luck” but I said it with a lot more feeling than normal. He didn’t notice this, but I did. The case, and Mario’s face, haunted me all weekend. <br />I was back at work on Monday and was soon busy enough to have other cases and people to occupy my time and thoughts. I didn’t ever find out what happened to Mario. I checked the computer screen a few months later and saw that he served his two days in jail and then never reported to probation again. A violation of probation was filed and a warrant for his arrest would remain active for two years in Douglas County. I knew, though, that if he hadn’t come back yet, he wasn’t going to. I can guess that he’s either in federal prison, awaiting deportation, or in Mexico hiding from Uncle Sam and wishing he had those five thousand dollars to live on. Mario seemed smart and confident, but someone had played him for a fool and had promised him some “easy” money for being a “mule.” That’s probably where Mario go the $5000. Someone probably flashed more cash than he’d ever seen and promised him $5000 for moving “just a suitcase” of cocaine a thousand miles. Mario probably thought that for a couple days’ drive he could earn more than he made in two months at his job. He probably didn’t stop to think why such an “easy” job was worth so much until he heard how high the stakes were if you got caught. Like a lot of guilty, but lowly, people in the drug hierarchy, he probably ended up doing a lot of time since he didn’t know enough about the organization or its members to be much help to the government. So he either wised up and ran for his life or ended up fighting for it for years in prison. <br />I still wonder where Mario was and what he thought when he finally realized how bad things were for him and how much worse they could get. I wonder if I should have told him about it myself or if I made the right call to let him live, ignorant of this reality, a little longer.<br /><br />Copyright, David Tarrell, All Rights Reserved, 2006David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-1144094834587890812006-04-03T13:06:00.000-07:002006-04-03T13:12:04.193-07:00RichardI heard Richard’s voice on my voice mail before I even received the file folder that informed me I was assigned to his case. On the message, I could hear the familiar background buzz of the jail and Richard’s voice, like many clients who called from jail, sounded scared and desperate. “Mr. Parro?” (most of my clients got my name wrong at first, having only heard it from the hurried secretary when they called to see which public defender they had drawn) “I need to talk to you A.S.A.P. about my case. I can’t make bond because it’s $1000 and I don’t have even $100. The failure to appear charge shouldn’t even be on there because I was in the County Hospital on my court date. The sheriffs came and picked me up at my house and took me there. I couldn’t leave. They had a Board of Mental Health Commitment order for me and I couldn’t get out to go to court. It’s a long story, but the D.U.I. charge is from this summer, about three months ago, and I’ve spent the last two months in the hospital for severe alcoholism and depression.”<br />The message, like a lot of them, went on for a few minutes and from it, and from the computer system, I figured out that Richard was charged with second offense drunken driving, or D.U.I., driving left of center, and driving under suspension. There was not much I could do for Richard in the short term since the bond, $1000 cash, was not that high for a second offense D.U.I., especially considering that his first D.U.I. had come just over one year ago. His bond was not likely to come down to zero, where a person like Richard could afford it. <br />I could have scheduled a bond review hearing, by filling out a form and filing it. This would have placed Richard and myself back before the judge who originally set his bond. The only problem was that asking to have a bond lowered, or reviewed, also gave the judge a chance to raise it. In other words, just by asking for a change in bond, a defendant risked the judge saying, “I guess you’re right, Mr. Tarrell, this bond isn’t quite right. I think $25,000 is more appropriate.” While this didn’t happen often, I knew some judges would punish you for “wasting” their time. I also knew that the level of a person’s bond determined where they were placed in jail, so that the prisoners with the highest bonds were grouped together. So, while a person who wanted to get out of jail obviously wanted to ask the judge to reconsider their bond, this person also risked having the judge raise it, and this could mean that the prisoner was moved to a different “mod” in the jail, where their access to jobs or to treatment programs changed. I didn’t want to try to help someone and then end up hurting them inadvertently. <br />With all the cases and clients I had to deal with, I had to pick and choose carefully when I scheduled bond reviews and other pretrial motions. If real help didn’t appear likely, it wasn’t worth my time and effort. There were plenty of things to work on, but no time to waste on slim chances. Richard wasn’t going anywhere for awhile, even if he thought he should be. I knew I would see him at the jail on Tuesday to explain where he stood and what he likely faced. <br />Tuesday was my “jail day,” meaning that I had no appointments scheduled with clients and, hopefully, no court appearances. This day gave me a chance to visit clients who were in jail, to copy and review police reports, to prepare for trials or motion hearings, and to complete the paralyzing amount of administrative paperwork that seemed inevitable and never-ending when working for the government. However, every week it seemed like at least one case was accidentally scheduled on my jail day or one client just couldn’t wait another day to come see me or to get into court. In short, what always started out to be a day to catch up usually ended up like any other day in the public defenders office: putting out the biggest fires as you charged from one catastrophe to the next. <br />On Tuesday morning I checked the jail section of my file drawer and faxed a list of prisoners to the jail so they could be brought down into the “bullpen,” or holding cell, to await my visit. When Richard walked out in his orange jumpsuit and plastic shower slippers, which were given to every prisoner, I was very surprised as the person before me looked nothing like what I expected. Richard was very slight, about fifty, with very pale skin that made him blend in with the jail’s dull, “institutional gray” walls. He led the way into the visiting room, which consisted of three slightly portioned areas each with one small table and two plastic patio chairs. <br />This was actually the overflow visiting room- there were three individual rooms for attorney visits- but I’d learned long ago that this overflow area was both faster and safer than the small, cramped private rooms. Richard and I didn’t have much privacy, and while this may have been bad for his case, it was preferable for me. Better to get to know Richard out here, where it was safe, than get into a room with him and discover that he was dangerous. I loved being a public defender but my first priority was always my own safety. I wanted to make it back home tonight and back to work tomorrow, in other words, and I tried to avoid any risk that I could. <br />When we were “alone” in the small cubicle, Richard shook my hand enthusiastically and began to smile, as if in this small safe haven in the middle of the jail he could act like himself again. He told me his age, that he was single (his skin looked as if he’d been married to alcohol for a couple decades) and that he had a master’s degree in English literature. I had one of these myself, but I didn’t tell him this. Instinctually, rather than professionally, I sensed that I shouldn’t share details of my personal life with my clients unless I absolutely had to or grew to completely trust them. Thus, no pictures of my wife or my two daughters appeared in my office. I enjoyed working with and helping my clients, but I didn’t share much information. You never knew when one of these “small time criminals” would grow into a big time killer. The less they knew about me as a person, the better, especially at first.<br />Richard told me, without using the words, that his life had spun out of control since his mother died two years ago. First, he started drinking heavily again, after about seven years of sobriety. I had heard that alcoholics who took years off always came back to it with a renewed passion, and Richard looked like the poster child for this rumor. Richard lost his telemarketing job as his drinking escalated, but he described this as a blessing. He was a smart alcoholic who was stuck working in a dead-end job. I wondered if I would have been driven to drink if I would have had to remain in the type of jobs that had put me through college. Is there something about having to say “do you want fries with that?” when you’re in your thirties or having to call people at home when you’re in your forties that would drive any American worker to numb themselves with booze? <br />Richard had numbed himself, had lost his apartment in west Omaha, and moved to a cheap place in a bad neighborhood. Even if he would have been sober in this area, he would have been a target because of his age and build. But he was rarely sober and that made him a “predatee” in the midst of predators who were both streetwise and either sober or influenced by drugs that didn’t make you pass out or stumble home. Richard told me he had been robbed by a cabdriver who had listened to his story and promised to drop him off and then drive to the store to get him some groceries. Richard gave the driver his last twenty bucks and, of course, the guy was never seen again. I wondered if Richard had indeed been ripped off or if he just passed out while waiting for his groceries. Maybe his grocery order was perhaps a loaf of bread and another bottle of cheap vodka. Either way, Richard’s hazy memory and slurred speech pattern, after seven days in jail told me that his version of events had to be taken with a gallon of salt. <br />True to form, Richard didn’t remember much about his D.U.I. charge, only that he hadn’t been far from home and that he was really drunk. I hadn’t yet seen the police reports that detailed his arrest, so I wrote down what little he remembered. He was also charged with failure to appear, meaning that he’d allegedly missed a court appearance that was required for this case. When he told me why, I realized why he didn’t remember much about the night he was arrested, or about the last few months in general. Shortly after Richard was arrested for D.U.I., he was picked up, while extremely drunk, at his apartment and placed in the county hospital’s detox center. After he sobered up a day or so later, he was brought before the County Board of Mental Health (B.M.H.) and ordered to be involuntarily committed to a psychiatric facility for major depression and alcoholism. <br />He remembered his public defender who argued, unsuccessfully, on his behalf at this hearing. Richard remembered this lawyer clearly and was sure he would be remembered too. He told me to ask this attorney about his case, but I knew that this was but one of a few hundred “B.M.H.” cases this attorney had argued. While it was a major event for Richard, it was one of several that his Public Defender had argued that day and one of several hundred that had gone through since that time. Three months was a long time ago with our caseload and thus the file would be more reliable than the attorney’s memory at this point. Still, I told Richard I’d ask his old public defender about the case and told myself to do so only if I happened to run into this veteran attorney in the hallway. I promised Richard I wouldn’t forget about him and as we said good bye, he looked at me the way a puppy in the dog pound would look at a new, prospective owner. He was pathetic, incapable of caring for himself, and badly in need of legal assistance. Even in this state, he was doing better than the bureaucracy, which had ordered him to be in court, then ordered him to be in the hospital, and then jailed him for not being in court when he was in the hospital. <br />Back at the office, I checked the file and found out Richard went straight back to the county hospital after he was committed there by the Board of Mental Health. From there he spent six weeks in inpatient alcohol treatment and two weeks at the “Regional Center” where he was evaluated and treated for psychiatric problems. After this, it was the Greyhound bus back to Omaha and, from the looks of it, straight to the liquor store. <br /> <br />Richard’s father had paid his rent while he was away, so Richard was able to return to his tiny apartment, at least for a few days. Then early one morning, the police knocked on his door and took him, partially dressed and without a coat, back to another county-run facility, jail. While he was committed to the hospital by the County Board of Mental Health, the County Judge, who didn’t know this, had issued a warrant for Richard’s arrest after he missed his scheduled court appearance on the D.U.I. charge. Richard tried to explain that he’d been involuntarily committed by the state, but he had not been quick or sober enough to grab any documentation of this when he was arrested. <br />I contacted the facilities where Richard had been sent and verified that he was telling the truth. After I found this out, I scheduled a bond review hearing to explain this mix-up to the judge. Since I was armed with names and could swear to the court that Richard’s explanation had checked out, Richard’s chances of getting out of jail were greatly improved. However, he was still facing his second D.U.I. in a twelve month period and was unable to post any money for bond. This told me that Richard’s best bet for getting out of jail was to change this bond review hearing into an early plea. If the police reports showed me that the state had a good case against Richard, I could see if he wanted to plead guilty to the D.U.I. charge in exchange for the state dismissing his other charges and recommending either probation or a straight jail sentence that Richard could possibly serve at home, under house arrest. <br />Getting Richard probation would serve him well today by letting him go home, but I had to think of the long-term effects probation would have on him. If he couldn’t comply with the terms, he would likely end up serving more jail time than if he had simply asked for a “straight” sentence right now. Sometimes judges appreciated it when a defendant was honest with them about whether there was a genuine desire to successfully complete probation. Judges who suspected that a defendant asked for probation simply to get out of jail, and then wasted the court’s, the probation office’s and the public defender’s time, could usually count on a harsher sentence than if they had simply been honest with the judge at sentencing. <br />On the morning of Richard’s bond review hearing, I spoke with the prosecutor about how much resistance he would put up as I requested that Richard’s bond be lowered. At this point, Richard had been in jail eight days and I knew this would be a good time to negotiate a plea bargain as the prosecutors would like to get rid of this case instead of simply addressing the bond. Since the statute for second offense drunk driving required at least two days in jail if a defendant received probation and at least thirty days in jail if not, I suspected this prosecutor would be willing to go a little easy on Richard since he had just returned from an inpatient alcohol treatment program. (Of course, I didn’t tell him I suspected Richard had already “fallen off the wagon”) <br />The prosecutor offered to remain silent about the sentence, and not make any recommendation, which meant that I had a good chance of convincing the judge to give Richard the minimum thirty days in jail. I didn’t want to see Richard get probation because I knew he’d violate it. As much as I wanted him to get help with his alcohol problem, my job was to minimize the damage that the legal system could do to him. Having looked into his helpless eyes, I hoped he’d get sober soon, but I suspected that if he had to get sober or go back to jail, he’d be back in an orange jumpsuit as soon as the system caught up with him again. Better to cut him loose without any obligations hanging over his head. Maybe this time in jail would be a wake-up call to him. I wouldn’t bet on it, though, and thus I didn’t want to risk having him sit for ninety instead of thirty days. <br />When Richard was led into the courtroom, I had a couple minutes to explain the plea bargain to him. I whispered that I thought he could get thirty days and have the matter be over and done with, but then I added, as I’m ethically required to, that if he took probation he could probably go home today. I have an ethical obligation to explain all plea offers to clients and I have to let them make up their own minds. However, in cases like Richard’s, I also strongly advised my clients to choose the option that would be the easiest to live with. I didn’t think Richard could live with probation because I didn’t think he was ready or able to live without alcohol. <br />I had to be the voice of reason for my clients, especially those who were, like Richard, in jail and wanting out yesterday. I knew almost everyone in his position chooses the option that gets them home the quickest, without thinking very hard about the long term risks. My job was to look out for his legal interests, to minimize the damage that could be done to him, so I had to explain that a straight sentence had a definite end, while a sentence of probation could end up costing him up to ninety days in jail in the future. <br />Of course Richard wanted a chance at probation, even after I cautioned him and told him I didn’t think he’d make it. I got the sense that made this choice under some duress. He was a very slight, very white man and undoubtedly jail had been rough on him. Like a child, he didn’t think his options through very deeply; he just chose the path that would keep him safe for today. Months in the future were like a lifetime to him, especially if he had to sit them out in jail. He wanted to either get away from the pain of concrete jail or really wanted to get back to the pleasure of the plastic bottle. <br />I didn’t know have much time to get him to change his mind. The judge called the case up to the bench and I had to quickly change from being Richard’s voice of reason to being his advocate. I warned him about the risks and now it was time to try to get him the chance he wanted. I explained to the judge what I knew about why he drank, how willing he was to get help, and how the judge would be helping him continue what his treatment program had (hopefully) started. I told the court about Richard’s college degree, his master’s of fine arts degree (in creative writing!) and about Richard’s swift decline following his mother’s death. I knew that humanizing a client- telling about his specific failures and successes in life- made it more difficult for a judge to slam him in jail. Hopefully, hearing about Richard’s higher education would persuade the judge to look at Richard as more than just another orange-suited failure and would paint him instead, as he truly was, as a addict who was trying to numb himself from the pain of this world. <br />I knew it would work and it did. It wasn’t so much my argument as the fact that most judges realize, through looking at the stream of alcoholics and addicts who come before the bench, that probation is usually the best place for a drug addict to start. Not only would the judge have a hammer to raise against Richard for the next year on probation instead of only the next ninety days in jail, but Richard would have to provide a urine sample each month for the next year. If he didn’t clean up his lifestyle, and his urine, he would be back in jail as soon as they found him. This incentive to clean up, the judge undoubtedly thought, would equate drinking with jail in Richard’s mind and give him ninety reasons to stop killing himself slowly and risking others’ lives suddenly. <br />As additional “incentives,” Richard had to pay a $600 fine and attend one Alcoholics Anonymous meeting each week for the next year. He also had to appear in about six months at a “show cause” hearing, where he would have to show why he shouldn’t go to jail. I hoped this day would be a celebration for Richard, but I suspected it would be a day when he went back into the place he was about to leave. As he was led away, Richard beamed, excited about not having to spend another night in the “stony lonesome.” I hoped for the best for Richard and moved on to other cases. <br />Several weeks later, a letter appeared in my mailbox with Richard’s return address typed on the top. In it, Richard pointed out in great detail how he detested twelve step program like A.A., how he had seen an investigation into their rates of relapse, and how he only needed stress management classes to give up drinking. It looked as if he’d typed to eight or so page letter on an old typewriter, the kind where the uneven letters lined up like the footprints of a wandering drunk. The dents in the paper showed that the typist had been forcing the old keys down hard, taking out their frustrations in the word’s meanings and in the letter’s depth on the page. I knew this meant trouble in Richard’s near future because the judge had handed him an absolute gift of one free A.A. meeting per week, and now Richard wanted to eliminate this gift from his list of meager requirements. I knew this attitude would start Richard off on the wrong foot with his probation officer and, justifiably, possibly lead to a new charge of violation of probation. Three weeks into a probationary period was no time to second guess the judge who just took a chance on you. If Richard didn’t grasp this simple truth, he was either too stubborn or too sick to successfully finish his probation. I had plenty of other new cases to worry about so I filed the letter away and hoped for the best. <br />I rarely answered my phone. The calls from current and former clients, from people who’d heard about you at jail, or from crack or meth heads who had no one to call but their public defenders, meant that the phone rang constantly and rarely brought a question that hadn’t previously been addressed. But once in a while, I picked up the receiver. A few weeks after I got Richard’s letter, I picked up my phone. No one was there and as I started to set it down, I heard a grunt that sounded like someone had fallen and couldn’t get up. It was Richard. He moaned and yelled into the phone, then calmed down and told me his name, in case I hadn’t guessed already. Then he told me his name again and yelled, not at me and not in a language that I understood, but uncontrollably, the way a street bum yells at the “government.” <br />Richard was very mad at something and it was painfully obvious that he would be testing positive lor alcohol at his next probation meeting, if he didn’t drink himself to death tonight. I tried to calm him down, and he said the most pathetic thing a person has ever said to me. He said, “I love you.” He didn’t say it as a compliment and I didn’t get the impression that he had the hots for me. He said it as if he was trying to pick himself up off the floor by saying something positive, the way some people would cry out for Jesus. He said it as if that was the only thing he had left in his house that wasn’t about to kill him. I don’t even think Richard knew who he’d called- he probably found my number lying around his house. He sounded as if he was too drunk to even know his own name, let alone mine. Soon the voice was quiet, and I hung up. I didn’t know what to do. As a fellow human being I wanted to call the police, the ambulance, the landlord at least. But, as a lawyer, I had been trained to think before I acted and to let intellect override instinct. <br />Whenever I didn’t know what to do, I found a senior attorney, who’d been there for a lot longer than me, and asked them what to do. I was worried, but I also knew that I had to think “like a lawyer” and be cool-headed instead of passionate. Leslie kept a cool head most times, when she wasn’t in trial, so I asked her in the hallway. “Unfortunately,” she said, “being drunk is a client confidence.” “You’re his lawyer, not his friend and you can’t do anything that’s going to get him violated on his probation. Your best bet- your only bet- is to let it go. If he violates, he violates, but you can’t turn him in, even if it means having to hang up on him when he’s lying on the floor.” <br />Maybe someday I would develop skin thick enough to carry out this advice without worrying and staying awake at night wondering whether I did the right thing and whether being a lawyer meant letting somebody drink themselves to death. I knew she was right, though; I knew I couldn’t justify turning in one of my clients in the name of helping them. I was playing a role in this drama and I couldn’t step out of character, at this stage, without paying a steep, professional price. Being Richard’s lawyer meant that I had to play my role and let other people play theirs. Other people were supposed to be monitoring Richard, checking up on him and reporting to the judge. Since I had started Richard’s drama as his lawyer, I couldn’t change roles until it was over. I took Leslie’s advice and let it go. I stayed awake a little late that night, but I had plenty of other cases to worry about and a lot of experience with worries<br />Richard made it through the night, but he didn’t make it through probation. He came back to court mad as hell that he’d ever been put in a twelve step program. He said something again about only needing stress management, but he backed off pretty quickly when I told him that it was too late for that. He was sentenced to serve fifty eight more days in jail. I don’t know if he had an apartment to go back to and I never saw nor heard from Richard again. He did what few clients do. He vanished. I hoped it was because he moved or got sober or got help with stress management. I am not sure I even want to know where Richard ended up. I suspect that I know what happened, but there’s still a glimmer of hope that maybe he’s o.k. somewhere. That’s the best way for my contact with Richard to end. I don’t want to know what really happened. It’s better to think of what could have happened. That hope keeps me safe, and keeps me from ending up where Richard probably did.<br /><br />Copyright, David Tarrell, All Rights Reserved, 2006David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-1144094751242970142006-04-03T13:05:00.000-07:002006-04-03T13:12:34.166-07:00DariusI recognized the name “Darias Johnston” when I pulled the five new client files down from my mailbox. I had represented Darias on a previous driving during suspension charge and I knew him as a trustworthy, fiftyish African-American gentleman who worked as a freelance mechanic in North Omaha. I ordered the police reports, noticing that Darias was charged with assault, disorderly conduct, and discharging a gun within the city limits. That didn’t sound like the Darias I knew from before, but put the file aside until I got the police reports about ten days later.<br />The reports looked bad, as they almost always did. Several witnesses had heard and seen Darias shoot a gun at an eighteen-year old boy as the boy ran from Darias’ house. The report stated that a witness told the police that Darias was mad about the boy dating his daughter. <br />I met with Darias about a week after I received the police reports and he told a different story. He came home to the house he shared with his girlfriend and her three kids at about 7:00 at night. His girlfriend was at the hairdressers, but he could hear the music coming from one of the kids’ bedrooms. It was loud enough that they could not hear his knock, so he opened the door to tell them to turn the music down. When he opened the door he saw his girlfriends’ three teenage kids, their cousin Antoine and a couple kids from the neighborhood. He also smelled marijuana, as he had several times in the past when Antoine was around. <br />Darias yelled at the unknown kid who was playing with the stereo. When that kid finally turned the music down, Darias asked who was smoking pot, but nobody owned up to it. Darias asked Antoine if he was the one, and Antoine “got smart with him.” I asked Darias what he meant by this and he explained that the boy called him “a female dog” and told Darias he could “whoop his ass.” Darias told him to leave (not in those exact words, I’m sure) and followed him down the stairs, telling him “get on out the door” and not to come back. <br />On his way out, Antoine grabbed a ceramic vase off the kitchen table and threw it at Darias’ head. Darias ducked, the vase shattered against the wall, and Antoine ran outside, slamming the front door behind him. Darias followed him out, yelling at him not to come back.<br />According to Darias, he picked up a snow shovel that was laying on the front porch, held it up and told Antoine not to come back around. Darias said that the loud bang described by the witnesses was the heavy iron door being slammed. <br />The police picked Darias up about fifteen minutes after they were called as Darias was driving away from the house in his pickup truck. The truck was searched, and Darias was arrested, but no guns or snow shovels were found. <br />It is difficult to know who to believe in a situation like this. Darias told me there was no gun and he struck me as someone who had lived honestly and whose face and eyes told the truth. But I also knew that Darias was a survivor who had been educated far from the insulated suburbs. To him, I was probably just another white man in a tie who grew up far from his home and who worked for the County- the same County that ran the jail and the courts. I couldn’t blame Darias if he chose to test out the snow shovel story on me to see whether the judge- who would probably be another white man or a carefully-chosen person of color- would believe it. <br />I gave Darias my usual speech about how I could get in trouble for disclosing anything that he told me about the case and how it was important that we get everything out on the table now, so we didn’t have any surprises at trial. “I give you advice based on what you tell me. So if you don’t tell me everything or tell me something that’s not true, my advice is going to be bad. I have to know about all the details so I can be ready for trial. If there are bad things that are going to come out at trial, I need to know about them now so I can be prepared for them.” I told him, without mentioning names, about the client who ended up in jail because he told me the truth in the middle of a trial, when it was too late to change his fate and too late to deal with what the witnesses had to say. “That man went to jail over a case that could have ended with a small fine,” I told Darias, hoping that he would not want to end up like this guy and would tell me what he knew so hat I could tell him how best to deal with it. <br />But Darias stuck to his guns, or to his snow shovel. When I asked him how the witnesses could have heard a gunshot, he said, in a way that made me believe him and want to help him: “I can’t speak for them other folks. All I know is that I don’t own no guns and I didn’t have no gun that night.” Darias was a mechanic, and he struck me as the kind of man you’d want to work on your car. He couldn’t read or write but he was smart enough not to speculate on what somebody else would say or why they would say it. He didn’t waste his breath trying to convince me that they were lying and he wasn’t. He either told me the truth or didn’t trust me with it. He wanted a trial and wanted to put his word against theirs that no gun was drawn or shot that night. <br />It was Darias’ life and not mine that would be affected by the trial, one way or the other. I believed him, or rather believed in him, and would help him tell his story about the snow shovel. I didn’t’ suspect that he was lying and he didn’t give me any indication that he was. It was my job to advise him about how to proceed in his case. If he was comfortable going to trial when the police report and the witness list showed several people who told the police they saw him with a gun, then so was I. <br />Reading this, in the safety of a book, it probably sounds as if Darias had a gun and now wants to lie about it in court. It probably also sounds like I was willing to help him commit this “second sin” in the courtroom. After all, three people in the police report allegedly told the police they saw Darias with a gun. How could three people be mistaken, you might be asking, and how could I think of taking Darias’s case to trial when three eyewitnesses would have to be painted as mistaken or lying in order to win?<br />The answer to these questions is that life is different in the part of town where most of my clients came from. In the suburbs, it’s easy (and overly tempting for most people) to assume that the police rarely lie and that three eyewitnesses couldn’t all be mistaken. But I had seen enough of a courtroom to know that a cop writing about three eyewitnesses and a prosecutor producing them at trial were two very different things. I knew that often police reports are written not as an investigation of what happened but as preparation for convicting someone, as if the real trial took place on the street and the courtroom was just a rubber stamp process. Some of the police that I dealt with would put their own spin on what a witness said based on who they were trying to convict. I was familiar with at least a few officers who believed so strongly in the “truth” of a suspect’s guilt that they weren’t afraid to lie to get a conviction. <br />I also knew that witnesses- especially in Darias’s neighborhood- couldn’t always be counted on to tell the police the whole truth and nothing but. Some people would have an “ax to grind” and would say anything to protect a family member, a friend or someone who could later give them something they wanted. Good cross examination could bring this bias to light in court. Only a few judges I appeared in front of seemed to care about how bias often brings lies into court, so I was hoping Darias drew one of these judges for his trial. <br />Just as witnesses couldn’t always be counted on to speak the truth to the police, they often didn’t ever make it to court to speak to the judge. Some people would say whatever the police wanted to hear and then never appear in court, perhaps being cooperative with the police as possible to avoid a possible arrest or check for warrants themselves. Prosecutors tended to view not showing up in court as fear of revenge by the accused, but I thought there were often other explanations behind this. Sometimes people didn’t care about a case, weren’t intimidated by a subpoena, or didn’t want to take time off of work. Sometimes it was group loyalty, as if a person from Darias’s neighborhood coming to the courthouse to help the police put a neighbor in jail was only necessary when people got shot and not when they just got shot at. Whatever the reason, witnesses, especially in relatively low level cases like Darias’s, often stayed away from the courtroom. This made me want to see who showed up before I gave up on Darias’s case based on what the officer wrote down. <br />Darias wanted a trial, it was his right, and I told him that having one was a good idea, as long as he would help me, and himself, by making sure we could get witnesses at trial so we could counterattack, and hopefully counterattack, the state’s case against him. I also knew that this was a good case to take to trial because, even if Darias was lying about picking up a shovel, I knew that we went to trial, we could show the judge what came before the alleged gunshot / snow shovel climax. If Darias simply pleaded guilty to any of the charges, he would not get as good of a chance to explain why he finally snapped and picked up the snow shovel (or the gun.) I also knew that Darias would be a good witness. He had a job despite not being able to read and would appear honest to the judge. Besides that, Darias assured me that one of the witnesses had seen Antoine throw the vase, had heard him swearing, and had heard him talking about getting high that night. Another witness listed on the police report, Darias told me, was a neighborhood kid who would say anything for Antoine- his older, role model friend. Darias didn’t think this boy had even been at the house that night, at least not until after the police arrived.<br />About a week before trial, I finally caught Darias’s “star witness” Lakeisha at home. She was Darias’s girlfriend’s daughter and had seen the whole incident. My eyes lit up when she told me that she heard Antoine talking about getting high that night, that his eyes were red and bloodshot, and that she’d seen him throw the vase at Darias’s head. She even described Antoine as trying to fight with Darias and told how it was Antoine, not Darias, who was the aggressor that night. She sounded confident about what she had seen and heard and, at this point, I thought of her as a great witness who could help me win Darias’s case outright. <br />But good witnesses often cut both ways. The more I spoke with her, the deeper she cut into Darias’s case. Lakeisha was confident that Antoine provoked Darias, but also confidently told me that she saw Darias go to his truck when he got outside and that she heard a loud bang right after this. She didn’t see him with a gun, had never known him to own a gun, but somehow a loud bang had come from the general direction of his truck. This caused Antoine, who was by then standing in the street yelling at Darias, to run away for good. Lakeisha would be a good witness initially, but on cross examination, even a mediocre prosecutor could make his case with her words. She cut both ways, in other words, and would help us show that Darias had a reason to be mad but would also help the prosecutors show what Darias most likely did when he got mad that night. I decided to send her a subpoena and then let Darias decide, on his trial date, whether he wanted to risk calling her as a witness. <br />I understood Darias’ snow shovel story at this point, even though I didn’t believe it anymore and knew the judge wouldn’t either. Even though I was his lawyer, Darias probably saw me as another white man who lived in the suburbs and never knew what it was like to live in his neighborhood. He probably thought that if he told the truth, no judge or lawyer would understand and that these people would only send him to jail. He had his story and he was going to stick to it. <br />It occurred to me that Darias had probably simply had enough, had gone to his truck and had shot the gun in the air to show this kid that he also had a breaking point. I wished Darias would have called the police that night, before he lost his temper, but I’d never even been to Darias’s neighborhood, even in daylight. If he had called the police, I would have been defending Antoine on a charge of disorderly conduct or destruction of property. The thought of Antoine go to jail seemed to be a more just outcome, but I probably wouldn’t have seen it this way if it was Antoine sitting across from me. <br />I didn’t have time to think about what ifs. Darias was looking at up to eighteen months in jail if the trial didn’t go well. He was also one of those clients who made you proud to be a public defender because he couldn’t afford to hire a private attorney to tell his side of the story. Darias’ story needed to be told well because the prosecution, with the power of the police on its side, would be labeling this eighteen year old, vase-throwing, pot-smoking punk as a helpless victim being chased by my gunwielding client. I knew Darias was no angel, but he was also not the black-hatted villain the state would melodramatically describe him as. There was culpability or guilt on both Antoine and Darias’ part in this case, but Antoine hadn’t pulled out a gun and had won the race to call 911. What Antoine wanted to do with the vase that night was what he would be trying to do to Darias in court: knock the old man out of the picture so he could get high and get to the old man’s daughter. I was not going to let that happen to Darias, at least not without a fight. <br />Trial was held on a Monday. The judge, growing impatient with a long day in court, called out “State v. Darias Johnston” and all ten or so of us walked up to the bench. The witnesses were “sequestered,” or sent out into the hall to keep them from hearing each others’ testimony. That left only the lawyers, the testifying witness, Darias, and a few spectators standing before the judge. <br />The first witness was Antoine. He was about my height and looked older than his eighteen years. When he talked, though, he seemed not as tough as his expression tried to be, and he seemed a little humbled by the courtroom and its formality. He told of boldly defending himself against this crazed old man, as the prosecutor asked him questions. He admitted to throwing the vase, but insisted that it was in self defense after Darias had pushed him down. He also told of Darias pointing a rifle at him as he stood in the street. I knew this image would be a hard one to get out of the judge’s head, even if we could show what led up to this. <br />My first question for Antoine was, “you were smoking a little marijuana that night, weren’t you?” He tried to act shocked, and denied it, as if he was not the type to smoke pot. However, his expression, if it could have spoken, seemed to be saying “damn, why’d he ask about that?” I asked this question first because I wanted to start off on a strong note, wanted him to know I wasn’t going to allow him to lie, and wanted to see if he would show the judge the temper Darias told me about. It didn’t work as well as I had planned because Antoine regained his cool and hung onto it throughout the questioning. He didn’t come across as totally truthful, especially about the marijuana and the vase, but also didn’t show himself to be a hothead who fought against all authority. After Antoine testified, the State had started to show both what I was afraid of and what I wanted the judge to see: the prosecution made it look like Darias grabbed a gun but also that he probably had a good reason for grabbing it. <br />The next witness for the state was the fifteen-year-old boy who would say anything for Antoine. Lakeisha told me that he had been there that night but that he hadn’t been close to the house when the gun supposedly went off. He was only fifteen, but he had a marijuana conviction on his record. I couldn’t introduce this conviction, but I could impeach him with it if he denied ever smoking marijuana. He told me that he and Antoine were not smoking marijuana that night, but admitted that he had in the past. He also said he saw a black object that looked like a rifle in Darias’s hands as he stood in the street. The kid also told of hearing a loud “bang” before he ran. I knew things were not going well for us, but also knew that it was not even “halftime” yet, and that there were many more stories to be told. <br />The police officer was next and was the last witness for the state. He hadn’t seen much that night and his report was based on what Antoine and others told him. I did not attack him, but only tried to show that he was unable to find a gun in a search of Darias’s car, house and yard. Still, I knew the judge wouldn’t have to hear about a gun being found to believe the witnesses who saw and heard it. The state rested and I was thankful that for once I did not have had to attack the police officer, as this sometimes came across as armchair quarterbacking a uniformed public servant. <br /> The state’s witnesses established that a loud bang occurred, but they also revealed that they were not the kind of people who would listen to a command to leave a person’s house. The two kids also showed the judge that they were not being the best houseguests, smoking pot and throwing vases in Darias’ rented house.<br />I made a customary “halftime” motion to dismiss the case, knowing that it would undoubtedly be denied by Judge McCarthy. It was denied and I quickly asked Darias what he wanted to do. We talked earlier about whether he wanted Lakeisha called as a witness and we decided to wait and see how things went. I told Darias we didn’t have much to lose, but, looking back I shouldn’t have said “we.” <br />I called Lakeisha to the stand and she quickly blurted out that Antoine was “high” that night and the prosecutor quickly snapped, “objection, foundation.” The judge sustained or agreed with the objection and “struck” the Lakeisha’s remark from the record. This meant I had to backtrack and show that her conclusion that Antoine was “high” was reasonably accurate. I asked her if she was familiar with marijuana and its effects, if she had seen people before and after they had smoked it, and if she observed these effects on Antoine that night. The prosecution again objected but this time the judge let her answer stand. I considered this a small victory because now, even though the prosecution created a loud bang with their evidence that was difficult for us to explain, we had now hung a cloud over their case that probably wouldn’t affect the verdict but would undoubtedly help mitigate the sentence that followed. The judge, who was about Darias’s age, could place himself in Darias’ shoes and picture what it was like to come home to the smell of marijuana and the sound of a loudmouth punk under its influence, in your home. <br />Lakeisha went on to say that Darias never physically touched Antoine, even after Antoine hurled the vase at his head. She told about an argument that started in her bedroom when Darias came in to tell them to turn the music down. According to her, Darias did ask Antoine if he was the one smoking marijuana, but she also said that Antoine “got smart” with Darias and called him an old “female dog.” I asked her what she meant by this, and told her she wouldn’t be in trouble for swearing in court, but she couldn’t bring herself to say the word. She went on to describe Darias telling Antoine to leave and following him down the stairs as he left. She said Antoine grabbed a vase off the kitchen table and barely missed Darias’s head. Still, she said, she never saw Darias lose his temper that night. <br />She talked fast, and she started talking about what happened outside, on the porch, before I could slow her down. I had always heard that if something bad has to come out about your client’s case, it should come from your client’s or your witness’ mouth, so you have a chance to explain it and don’t appear to be hiding it from the judge or jury. If you ignore an obviously damaging piece of evidence, the story goes, the other side can pull it out as evidence that your client is lying about the evidence and lying about his guilt. With this in mind, I let Lakeisha explain what she heard outside. She said she couldn’t see Darias at the time, but that she heard a loud bang after she saw him walk to his truck. I knew this was bad for Darias, but also thought explaining it ourselves was better than letting the prosecution bring out this “bang” that she heard, on cross examination. Looking back, I think I gave the prosecution too much credit. They had their hands full that day and were probably not nearly as familiar with the case as I was. There was probably a good chance they would not have asked Lakeisha about what she had heard, but now I had done their work for them in trying to work for Darias. <br />Darias wanted to take the stand, and I knew that he would be a good witness. He told me he could not read or write, and, before trial, I noticed that he couldn’t even spell out his daughter’s names when I asked him about them. Sometimes, though, people without much formal education come across as more credible than the Harvard-educated expert or the Armani-clad corporate attorney. Darias was a mechanic who learned to read engines by the way they hummed. He was credible to the judge because he didn’t try to be slick and spoke as he was: a simple man with a simple explanation of what happened that night. <br />At one point, the prosecutor thought she had Darias pinned down in a lie. Darias was hard to understand and stated that he stopped to see his girlfriend’s “ladyfriend” on the way home, to fix her car as a favor. I heard him say this clearly, and I think the judge did too, but the prosecutor hadn’t heard him say “ladyfriend.” The prosecutor thought Darias contradicted himself, because he had previously told the judge that he hadn’t seen his girlfriend that night until after he argued with Antoine. The prosecutor then tried to make Darias look like a liar, by bringing up his earlier statements, but Darias calmly repeated what the judge and I had both heard. The result was that the educated prosecutor looked “slick” and manipulative in questioning the word of this simple working man. The truth was that the prosecutor had just heard him wrong, but it looked like she was trying to create a reason to attack him, as if she did not have a real reason for doing so. <br />Darias, on direct examination, told of grabbing a snow shovel off the front porch as Antoine yelled at him from the street. He denied it just as forcefully as he had in my office and denied having a gun ever, let alone that night. I thought this was a good note to end on, so I cut him short. The prosecution asked a few minor questions, and we rested. <br />The prosecution summarized by pointing out that three witnesses heard a loud bang that night and that we hadn’t explained this. I remembered Darias’ explanation that this was probably the iron storm door slamming, and concluded again that bringing this explanation into evidence would probably have hurt and not helped out Darias’s case. If we had discussed the “storm door excuse” it would have only reminded the judge that we had no real, plausible explanation for the bang several witnesses, including our own, heard. <br />When my turn came, I tore into Antoine and the boy’s lack of credibility. I asked the judge to put himself in Darias’ shoes, coming home after work to find some kids getting high with your daughter in your house. When he tells them to turn the music down, they refused, yelled and threw things at his head. I used this summary because at this point, a conviction was likely and these words were chosen not to claim innocence but to show justification. I knew a conviction was coming and was trying to cushion the blow. While I had the judge’s attention, I spoke about Darias’s innocence (“They hadn’t proven he had a gun”) but was really addressing Darias’s position (“These boys had it coming”). <br />I failed at beating the state’s case against Darias but succeeded in keeping him out of jail. The judge “split the baby,” finding Darias guilty of shooting a gun in the city limits, but not guilty of the assault and the disorderly conduct. The judge, a good one known to say in two sentences what some lawyers said in two pages, simply said, “I think you lost your temper. I order you to pay a $300 fine plus the court costs.” <br />Nearly everyone was happy with this verdict. The prosecutors got their conviction, the “victims” got to see Darias lose something, and I got some valuable trial experience that can only come from being in court. Darias was thrilled, but he didn’t let this show until we got outside. His had been a rough life, and he had probably expected to go to jail, at least for a little while, even if he was innocent. I didn’t know whether to take his reaction as a sign that he really shot his gun that night or simply as a relief that it was only money and not time that had to be paid. I took Darias’s smile as a rare, but fulfilling victory in itself, however.<br /><br />Copyright, David Tarrell, All Rights Reserved, 2006David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0tag:blogger.com,1999:blog-24913502.post-1144078332296029852006-04-03T08:20:00.000-07:002006-04-03T08:32:12.640-07:00Alvin: One Client's StoryThe first and only time I saw Alvin, he opened one of the double doors leading into the Public Defenders Office, walked up to me and stared intently at my chest. After he looked at one side and then the other he looked into my eyes and said, “I was looking for a name tag.” Alvin looked to be about seventy years old (I said sixty when he asked me to guess) and a tired-looking woman followed behind him as he walked behind me back to my office. <br />Alvin had on one of those hats that grandfathers in the Midwest often wear, the kind with a plastic button emblem sewed on the forehead area, a flat bill, and the ear flaps that can be pulled down in cold weather. He wore a heavy wool coat and his glasses were slightly fogged over, making it look like he just came in from a long walk in the cold. <br />It was a Friday afternoon and, after Alvin introduced himself, I remarked that I knew just a little about his case and that we had an appointment scheduled the next Monday. Alvin didn’t seem to catch the hint and, because the look on his wife’s face told me it hadn’t been easy for them to get here today, I agreed to take a few minutes to talk to them about Alvin’s case and upcoming trial. <br />There is sometimes an awkward silence between the time the door closed and I pull out the client’s file and pull up the information of the computer network. I usually break it by explaining that I will start off by asking them a few background questions before we talk about their case. Most clients are either so mad about the charges they face that they want to vent their frustrations on me as soon as my door closes or else they are so embarrassed to be in my office that they won’t say a word. I try to “break the ice” and set the tone for the interview by telling them that they will get their chance to vent in a minute and that they will do it in response to my questions, the way we would have to lay out the explanation, or excuse, for what happened in a trial. <br />I told Alvin that he was charged with shoplifting and that it carried a possible ninety days in jail but that he was very unlikely to go there given his clean record and age. His wife about fell over when I said “jail” but I calmed them both down by explaining that while jail was possible it was very unlikely and that if Alvin wanted a trial he could have one. It was up to him. <br />Alvin said, “Yeah, I want a trial and I want to take a lie detector test! I want to go just talk to the prosecutor or the judge or whoever and take a lie detector test so I can prove I didn’t steal anything. Can we set one up today?” I explained that we didn’t have a lie detector, that the prosecutors didn’t either and that the only one available was at the police station. I told Alvin that I believed him and that we could see about the lie detector later, when he got closer to trial. Inside I knew that while the police undoubtedly had one, we weren’t going to be able to use it for this misdemeanor case involving a theft of a $5 tool kit. Alvin was entitled to a free attorney but a lie detector test, the results of which would not be admissible at trial anyway, would have to be paid for out of Alvin’s own pocket. Rather than explain this to him and upsetting him even more, I postponed the issue and hoped he’d forget about lie detectors by our next meeting. <br />Alvin explained what happened. He was at the grocery store with his wife Dora when he wandered away from her, saw a tool kit on display. Thinking it would make a nice present for their son, Alvin picked it up and walked over to where Dora was pushing the cart to show it to her. He took about ten steps, tool kit in hand, when two security guards grabbed him, accused him of stealing and called the police. At first I was as surprised to hear this as Alvin probably was, wondering why a person could be stopped inside a store when they made no attempt to hide an item and he was obviously just looking for his wife. In my job, though, even though I was a new lawyer, I had learned quickly to believe my eyes and not my ears. I knew that people often lied, were mistaken or were just too old to remember things accurately. I appeared in front of an eighty-five year old judge all the time and I learned that, like a young child, the memory of an old man wasn’t always gospel. <br />As Alvin kept talking, it became clear that he was more than a little confused about what had happened that day during a routine shopping trip. He explained that he was well inside the store and that he was walking toward his wife while she waited in the checkout line when the security guards stopped him. <br />I looked over at Dora and saw the hint of an eye “rollback”, as if she didn’t agree with everything that Alvin was telling me. Her look was one of frustration and not mistrust, however, as if she remembered the situation differently and wished he did too. I asked Dora if this is how she remembered it and she told me that she had gone to the car, with the groceries, waited there for fifteen minutes, and then come back in the store to find Alvin being detained right by the front doors. <br />Something wasn’t right about Alvin’s description of what happened, but I didn’t detect any hint of dishonesty as Alvin ranted about how he just picked up the item, walked toward his wife and found himself in trouble. His tones, age, and body language told me he was innocent, but the description he gave showed me that someone was probably justified in thinking otherwise and charging him with shoplifting. But what could explain such a credible claim of innocence by Alvin and an attack on an old man by the store security? What was missing? <br />Alvin explained the story again, not in more detail, but in exactly the same words that he told me the first time, as if maybe I didn’t hear him and an exact repetition would help set him free. I asked him about his background and found out that he was actually in his early eighties and had been married for sixty years. Alvin went on to tell me that he retired from the packing house twenty years ago and he and his wife raised three sons together in South Omaha. <br />With this background, he obviously seemed an unlikely shoplifter. I had heard stories about socialite kleptomaniacs who appeared grand but who actually had records as thick as their bifocals. Alvin didn’t seem like one of these outwardly upstanding, inwardly criminal types, however. He didn’t have a spotless record, though, because one shoplifting charge had been filed, and later dismissed, some fifteen years earlier. <br />Dora, Alvin’s wife, sat quietly through the interview, only speaking when she was spoken to and occasionally sighing or rolling her eyes as Alvin told me about that day. She reluctantly told me that she waited in the car for Alvin and, only after I questioned her, told me that Alvin was right by the outside doors when she came back in to find him. She clearly did not want to contradict or embarrass her husband in front of me. As I pressed her for information, to see if she could verify what Alvin was telling me, she didn’t seem evasive, just preoccupied and perhaps overwhelmed. While Alvin seemed worried, she seemed to have weathered challenges like this before. I thought this was a strange reaction from a woman whose husband was facing a criminal charge, but went on with the interview. <br />Alvin told me more about his background, in more detail this time and would have rambled on for hours about the past if I hadn’t steered him back to today and to the day when he got in trouble at the store. He told me the year he bought his house, his retirement date, the year he graduated from high school, and even the location of this school, long since torn down. <br />I asked him some more questions about what happened in the store, hoping to be able to answer the many questions I had about this strange case. I wanted more details to answer the legal questions such as whether the prosecution could demonstrate an attempt to conceal the item or an attempt to leave without paying for it. Alvin started the story again, from the beginning, but told me, in almost the exact same words, what had happened to him. Dora spoke up this time: “You already told him that, Alvin!” and Alvin gave her a puzzled look, as if this were news to him. I had witnessed many clients telling the same stories over and over, as if trying to convince themselves and me of a story that explained their behavior, but Alvin was the first client I’d ever encountered who repeated things and yet didn’t remember telling me the first time. <br />Alvin paused, seemed to gather his thoughts, and then began telling the exact same story again, as if for the first time. Dora once again said, “You already told him that, Alvin!” and placed her finger on her temple. “Alvin’s been having trouble remembering things lately and Dr. Haeberle thinks it’s probably Alzheimer’s,” she said. I asked her for the name again, as the puzzle in this case suddenly became crystal clear. I knew that a note from a doctor with the word “Alzheimer’s” on it would help me get Alvin’s case dismissed and let Alvin and Dora go home without having to come back or worry about jail. Alvin chimed in and asked her, “don’t you mean Dr. Samuelson?” Dora’s face once again took on that weathered, yet patient look and she said, “Alvin, he’s been dead for twenty years, I mean your new doctor.”<br />Hearing this, and seeing the genuine look of puzzlement on Alvin’s face, suddenly showed me what had most likely happened. Alvin was probably standing inside the store, on his way out, when he picked up the tool kit and followed his wife as she walked to the car. In his private world of Alzheimer’s disease, he was simply following his wife, and on his way to show her, proudly, what he found for their son, not realizing that he was walking toward the exit with an item he hadn’t paid for. The tired look on Dora’s face, the honest old man with a shoplifting charge, suddenly made sense. <br />What didn’t make sense was that the case had gotten this far without anyone realizing we were dealing with brain disintegration and not sudden, octogenarian deviance. The only explanation I could think of for the store wanting to prosecute and the prosecutors following through was the fact that Alvin seemed lucid and intelligent until you spent about ten minutes with him and heard him repeat himself. The shoplifting charge from ten years ago probably convinced the prosecutors that they may have been dealing with a person who didn’t learn his lesson. I wondered if this latest charge didn’t represent the later stages of Alzheimer’s and the earlier charge didn’t signify the early stage, fifteen years ago. <br />From my brief experience in County Court, I knew that you could always talk to a prosecutor about a plea bargain, (since that made their job easier and kept their conviction rate high), but could rarely talk a prosecutor into dismissing a case, especially before the trial date. A lot of cases were dismissed on the day of trial, when witnesses didn’t show up in court, but very few were dismissed before trial, when there was little incentive for the prosecutors to do so. <br />Alvin’s case, since it involved Alzheimer’s disease, seemed like the case that would be the exception to this rule and be dismissed, but, like always, I was merely the one that was allowed to argue a position and not the one who decided the outcome. I would have to convince a prosecutor that Alvin should go home before he was able to. <br />I decided that rather than tell the prosecutor about Alvin, I show them him in the flesh. It was often more difficult to say no to a face than to a faceless police report, especially when the face looked old and innocent like Alvin’s. Alvin and Dora waited for me while I interviewed my other clients and the three of us went to the City Prosecutor’s Office over the lunch hour to make our pitch. <br />As we stepped into the crowded elevator, I knew our chances were good as long as one particular prosecutor was not assigned to the window over the lunch hour. Of course, as we turned the corner, there he was and it was too late to turn back without having him recognize what had “scared us off.” Besides that, even this prosecutor would recognize the difficulty they would have in proving an intent to steal against a man who was old and affected with a degenerative brain disease. David, the prosecutor, searched through the wall of file cabinets, found the police report that detailed the state’s case against Alvin, and glanced at Alvin’s brief prior record. “I see you were picked up for shoplifting in 1987 and the charges were dismissed? Do you remember that?” David patronized. Alvin couldn’t remember this (for once his ability to remember the past and forget the present failed him) and I quietly told the prosecutor that Alvin had recently been diagnosed with Alzheimer’s. I then asked the rhetorical question, “I wonder if maybe he’s actually had it for awhile?” I was hoping the prosecutor would see that no prior record for sixty five years and two theft charges in the last fifteen might be attributable to Alvin’s recent diagnosis. I asked Alvin to show the prosecutor his driver’s license, so this man could see that Alvin was over eighty now and was thus over sixty five when the last charges were filed. <br />“Well, the problem I have,” David slowly observed, taking advantage of all the power he had been given through his job, “is that we’ve already dismissed one of these charges.” He paused again, almost savoring the fact that he had a large part of this old man’s future in his hands. “Here’s what I’m willing to do for you,” he said. “I’m going to hold onto this case for awhile, and if you’re not picked up again, I will make it go away. But if you are, you’ll be going to jail.” I knew this was an idle threat, that it was the judge who would decide if the old man would go to jail, but I was willing to let Alvin have to hear it if it meant getting these charges dismissed. Of course, there was more to the prosecutor’s offer to Alvin. <br />“No more going shopping on your own, Mr. Cross.” David paused so that the words would sink in. Alvin looked puzzled and childlike, hearing that he could never look at another tool kit again. “Ever?” Alvin asked, pathetically, like a kid hearing a threat from an overpowering parent. “But how am I supposed to…”<br />“Ever!” interrupted the prosecutor. “You can’t leave her side. You can’t walk off and pick up things on your own anymore. You’ll have to just follow her around and if you see something, you let her pick it up. Do you understand me?”<br />I thought about interrupting and telling this prosecutor where he could put this threat, but I knew it was an idle one and that an outburst from me, at this point, would only hurt my client. I knew this because I had also seen the prosecutor write “dismiss” on his paperwork and I did not want to say anything to change this powerful man’s mind, especially when he had decided to let one of “my people” go home. <br />Alvin looked defeated as we walked away, but Dora looked relieved. She told him they could still go shopping, that they’d just stay close together and that he wasn’t going to get in any trouble or have to come back here ever again. She told him this wasn’t so much different than their current routine and that they could make it work. I told them that this was just an idle threat and that the important thing was Alvin’s current case was done. I started to explain to them that in a few months Alvin’s case would have to be dismissed, because of his right to a speedy trial, but simplified it and told them that if Alvin stayed by her side, in a few months, this case would be dismissed, even if the prosecutors got mad at him again. <br />We paused in the hallway and I carefully asked Alvin how he felt about what the prosecutor had done for him and to him. I thought he’d probably still be embarrassed or upset. <br />“Just fine!” Alvin told me, seeming to be puzzled as to why I even asked. Evidently Alvin’s Alzheimer’s-infected mind had already moved back two decades to times that were more easily understood and less painful to remember. Alvin and I shook hands and I knew probably never see him again and that it wouldn’t be long until I would read his name in the obituary section of the Sunday morning paper. <br />When I said goodbye to Dora, she hugged me as tightly as my own grandmother would. The look in her eyes was of such genuine gratitude that I suddenly realized that the real victim of Alzheimer’s wasn’t Alvin, it was her. Alvin was safely back in his old days, but she had to deal with the here and now, with the shopping and the shoplifting. <br />When I got back to the office, I set Alvin’s file off to the side and made a mental note to be at the hearing to make sure the charges were properly dismissed. Alvin and Dora had been through enough lately. I wanted to make sure they could truly forget about this case and simply deal with what their brief future together had to offer. <br /><br /><em>Note: I went to court and Alvin's case was dismissed, as it obviously should have been. A couple months later, I called Alvin, to see how he was doing. Sounding sad but almost relieved, Dora told me he was gone. Evidently his Alzheimer's was worse than even I imagined.</em>David Tarrellhttp://www.blogger.com/profile/17143913959192642374noreply@blogger.com0