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Sunday, May 27, 2012

Is principle worth your freedom

I joined a colleague that was going to speak to her client about his plea offer that was soon-to-expire.  This particular client had been in jail for 12 months, accused of stealing and selling copper.  He was adamant that he found the copper on the side of the road, he left it there for 24 hours to see if the rightful owner would come retrieve it.  When he went back the copper was still on the side of the road so he took it and sold it.  He was unemployed, his parents were sick and they needed the money. 

I sit there listening to my coworker and listening to the client for about 20 minutes and I realize they are having two separate conversations.  She is trying to get him to understand what the law says and he is trying to get her to understand what he is going through.  While he admits that something did not "feel right" when he found the copper on the side of the road, he does not believe he found and sold the $6,000 worth that was stolen from the power company.  He was willing to pay restitution in the amount of $1000 but not a penny more.

I explained to the client that as his attorney, I would fight on his behalf if he wanted a trial.  I would require that the District Attorney prove each and every element of the charge and I would closely examine every piece of evidence they intend to present.  But I also explained to my client that as a person, sitting on the jury, I would find it hard to believe that valuable copper sat on the side of the road for 24 hours with NO ONE else picking it up.  We then discussed his mother and the fact that he has already lost his father while serving time.  He explained that his mother was pretty much on her death bed and needed him home.  So I asked him to look at it like can take the plea, get credit for time served, chalk the $6000 restitution up to a life lesson learned and be home taking care of your mother.  Or you can stick to your guns, take your case before a jury, sit in jail until your case is up for trial and risk being incarcerated when your mother passes. 

He decided to take the plea.

You may be reading this and thinking that was a dirty trick, to use his mother as a way to get him to take the plea.  But you must look at it like this: He DID take the copper, he DID try to sell it, he DID think it was possibly stolen.  Elements of a receiving stolen property charge met.  The DA agreed to drop the Theft of Property charges.  The DA was asking for 12 months, of which, our client had already served 12 months.  There was no dispute that the alleged victim was out $6000 worth of property.  The question was whether my client received all of it and only sold some of it, or if he sold all that he had and had no idea what happened to the rest.  The IMPORTANT question was whether he was willing to sit in jail until his case came up for trial while his mother's health was failing.

The important question was "is principle worth your freedom?"  My client decided it was not. 

As I write this he is at home, cooking or cleaning and caring for his mother in her last days.  He is an elderly man who does not have much time left himself.  He has the next 13 years to make payments of any denomination towards the $6000 and you can bet your arse that he will NEVER pick up any copper off the side of the road again.

As attorney's we have a tendency to want to bring the client up to the level of understanding what the law "says", often refusing to be brought 'down' to what the client is saying. What we should be focused on is ensuring there is a "meeting of the minds" if at all possible, with our client. When we can accomplish a meeting of the minds, then we can speak to our clients about what is in their best interest without sounding like we are selling them out, selling them short or sending them up the river to fend for themselves.

Until next time,

Be blessed, be careful, don't confess and don't consent.


Monday, May 14, 2012

Law and Order

A little boy is born and all seems well.  He has ten fingers and ten toes, his screeching is so loud that it is clear his lungs are just fine.  He reacts well to being placed on his mothers warm chest and he squeezes his eyes in pain when he is placed under the light of the little bassinet that the nurses use to clean him up.

As he grows it is apparent that something is not quite....right about him.  He barely makes it past the eighth grade and then he just stops going to school, spending his days at his mothers side.

As a man he is on fifteen different medications, ADD, nerves, back pain, leg pain, headaches, stomach problems, und so weiter.  Although he does drink, even when he is stone cold sober he sounds like Boomhower from King of the Hill

One morning this man is startled awake by the loud ring of the telephone.  He can barely make out his mothers muffled voice in the other room.  Footsteps.  She is in his doorway and she needs him to take her to the hospital.  He hops up, throws on the jeans he peeled off the night before and takes her to the hospital seven miles away.  He decides that he wants to take a shower since he didn't the night before; he is starting to offend himself, surely he will offend his newborn baby niece.

As he approaches a yellow light he slows but then changes his mind and goes but it is too late, he runs the red light.  Two seconds after he realizes he has run the red light he sees the police car.  The officer hears the slurs of Boomhower and the disconnected thoughts of the thirty-three year old ADD man with an eighth grade education and immediately thinks "DRUNK DRIVER."  But the man blows 000's on the breath machine.  The officer figures he will just charge him with driving under the influence of something and takes him in.  His urine is never tested, his blood is never drawn, he is adamant that he was not drunk.  More important, he never had the opportunity to take his medication so he was not under the influence of anything.

The prosecutor doesn't care.  No evidence? So what? The cop arrested him so he must be guilty.  Time to go to trial.

Soon after I started practicing law I stopped watching Law & Order.  I stopped watching because they get it ALL wrong.  Every time I watched the show, any of the shows, I would sit there and shake my head "it's all wrong, they are all wrong!"

But there is one thing they did get right, the prosecutor is not supposed to go forward unless and until they believe that the police have the "right man."  I have watched episodes where the district attorney will tell the detectives "get me more."  I have sat and watched as the prosecutor yells at the police that if they don't get something that will stick they are going to have to let the perp go.  Never once does the D.A. say "hey, if you guys arrest them, I'll find a way to persecute them or corner them into taking a plea."

Alas, they did get one thing right.  They are supposed to be "seekers of justice."  The prosecutors are not supposed to say 'how high' each time an alleged victim yells jump.  The district attorney is not supposed to bow and bend at the beck and call of the police department, however that is exactly how the prosecutors in my state react.

Trial tomorrow.

I wish I was a school teacher.


UPDATE: Case dismissed.  The prosecutor saw that I was not going to back down or try to force my client into taking a plea.  He saw that I was ready and HUNGRY for a trial.  He asked for a continuance and the judge politely declined after hearing a brief synopsis of the facts. ;-)

Until next time,

Be blessed, be careful, don't confess and don't consent.


Saturday, May 12, 2012

I am the glasses

In the little municipality just north of my office, they have court twice a week.  Once a week, I am the public defender assigned to the defendants coming through.  But only if they ask.  So often people will come in, go to the city prosecutor or the judge, admit things they shouldn't admit, say things they shouldn't say and agree to things they should not agree to. The prosecutor or judge will allow these defendants to enter into these pleas because they are not getting jail time...yet.

Fast forward three, six or nine months and Ms. Thomas has failed to do something and she has been ordered to come back before the court.  Since she is NOW facing jail time for contempt, the public defender is appointed.  Five minutes after I am appointed I speak with Ms. Thomas, review her file and find out what happened.  Often the conversation is like the last ten I have had with clients in her same predicament:

Me: Ms. Thomas did you realize you were ordered to do X?

Ms. Thomas: No ma'am, I didn't know that.

Me:  Right here you signed that you read this and understood the judge ordered you to do X?

Ms. Thomas: I can't do that?

Me: Why didn't you do X Ms. Thomas and why can't you do it if I can get the judge to give you a little more time to comply?

Ms. Thomas: I am disabled/I don't have transportation/I have a new baby at home/My job won't let me off/I lost my job right before that court date/I just got a job yesterday/My husband just died/I am ineligible to get my license back/und so weiter.

The significance of Ms. Thomas' last statement?  She cannot comply with what the judge ordered her to do.  She could not comply when it was ordered and no amount of yelling, demanding or ordering from the judge is going to make her comply.  Had I been appointed at the beginning of her case, I could have had the above conversation with her earlier, and we could have avoided the ten, fifteen or thirty days in jail the judge is now demanding.  Had I been appointed earlier, I could have requested the court allow Ms. Thomas do something in place of what she could not do so that she is not held in contempt later.

I need my glasses to see. I don't mean that without my glasses the world becomes a black void, but you do not want to ride in a vehicle with me at night if I do not have my glasses on and I do not know where I am going. Since I need my glasses in order to see, if I do not have them on, no amount of yelling, demanding or ordering me to read something posted on the wall ten feet cross the room will help make it happen. If you want me to do what you order me to do then I need my glasses.

For my clients, I am the glasses.  If one of the things Ms. Thomas was ordered to do was enroll in a court referral program that would cost somewhere in the neighborhood of $700, but she is a single mother with 2 kids, and a full-time job that only pays minimum wage, she can't do it.  Even if she could, she cannot do it in the time period that the judge has ordered her to do it.  No amount of yelling, demanding or ordering is going to make her pay it and if she had been afforded the opportunity to place her glasses on earlier, she wouldn't be in the mess she is in.  A mess that the court placed her in.

I have grown to love my job, I have grown to empathize with my clients but I have grown to detest certain officers of the court.  I had a prosecutor tell me once that he didn't even want the defendants money any more, he wanted "her ass" [to serve time in jail].  Her charge?  Making an improper turn and not having her insurance card on her at the time she was pulled over.  He was pissed off because she never paid the ticket.  When she was finally located, he didn't want the ticket paid.  When I asked him what he would 'get' out of having "her ass" he just looked at me and walked away.

I know that I will not do this for the duration of my career, I have things that I want to do for myself and my family that requires more than a public servants salary will allow.  But before I whisk my daughters off to Italy or take my brother back to the beautiful German city where he was born, there are so many others that need to see.  There are so many others that are being allowed to enter into pleas that they cannot comply with.  There are SO many more people that need glasses.

I am the glasses.

(Thank you to EEG for helping me see my role as the glasses.)
Until next time,

Be blessed, be careful, don't confess and don't consent.