A salute....to the Public Defender? 

“I only charge guilty people, Dave” I’d say, a little tongue in cheek.  While I simultaneously believe and strive for that statement to be true, I'd mostly say it to needle him.  “Exactly what I expect a soulless Persecutor to say!” went the snarky reply.  This exchange happened in just about every conversation I had with Dave.  We both knew the other sort of meant it, but we both said it in good humor as a sort of “tip of the hat” to our stereotypical roles and expected attitudes toward the criminal justice system we both served. 

Dave passed away on Monday.

I was a brand new assistant prosecutor when I met Dave.  We were covering the Misdemeanor docket together.  It was the best/worst mashup of reality TV you can imagine.  Jerry Springer meets Family Feud with a little bit of Judge Judy thrown in to remind us that we were, after all, in a courtroom.  Dave had a wild mane of hair, which he clearly hadn’t seen since morning, a beard that he beat in to submission at least twice per year, and carried a briefcase that looked like it had been in great distress since the Hoover administration.  He had a gravelly smoker’s voice that carried a wry, dry wit perfectly.  It often took me a minute to tell if he was giving me the usual ration of crap, or if he really was ticked about something.  Either way, we’d both be in our seats well before the docket.  He’d dutifully look for his clients, ask me for my offer in the case, tell me it was outrageous, talk to his client and move on to the next one.  Often he might swing back by and give me a tidbit of information to see if that might move the offer.  Sometimes it did.  The wheels of justice ground away.

Though I’d had a taste of being on that side of the “v.”, I learned a lot just by watching him work.  A satchel stuffed with files, jail visits, conversations with the defendants, conversations with the families…on and on it goes.  I also learned that I didn’t always have the whole story.  More than once we’d have a case set for trial, and he would reveal that he had some “secret strategy” that might just get his guy off.  Though I don’t think it really ever worked out that way (as I recall), he made me a better attorney as I turned my case file upside down trying to figure out how he was going to beat me.  I also learned that some complaints flowed from him as defense attorney mantras…”DISCOVERY!” was the battle cry.   I wondered sometimes if he thought saying it three times would make me dismiss the case.  Usually, I would just give him a snarky reply about the secret discovery we kept in a blast proof bunker under the courthouse for trial emergencies.  He knew I was kidding, but I suspect he wondered.  There isn’t one.  Really.

We didn’t hang out after work.  We didn’t win each other over in terms of politics, viewpoints, case results or haircuts.  He did his job, and I did mine.  That’s what made the system work.  It was Wile E. Coyote and the Sheepdog.  Clock in; beat on each other; clock out.  It wasn’t personal.  Usually. 

Though some may have had different experiences with Dave, these were mine.  He was a dedicated professional who truly believed in his role in the system.  If I was going to successfully put someone in jail, he was going to make sure, to the best of his ability, that the State had done everything right.  That is as it should be.  Criminal defendants in Kansas City lost a strong voice on Monday…

…but Dave, since I get the last word, don't worry.  I only charge guilty people.  Guilty, guilty, guilty.

My prayers are with his family and colleagues.

Calling Superman?  Just Do It.

 

One of the best things about being a prosecutor is you never know what may come on any given day.  No day is quite like the next even when you have regular "dockets" each week.  When the court runs its criminal docket, it is a parade of humanity in desperate circumstances and with varying degrees of contrition, hostility and/or mental health.  It can move from the tragic to the hilarious in seconds.

On one occasion, seeing no reason to embarrass a criminal defendant in front of a gallery of fellow inmates, I chose to abbreviate the facts presented in support of the charges as follows:
Me: ...and the defendant was found running around, flapping his arms, and upon being subdued, appeared sweaty and disoriented...that would be the State's evidence your Honor"
Judge: Sir, does that sound about right? 
Defendant: (still in open court) "Yeah, and thank you sir...Mr. Prosecutor, for leaving the part out about where I was buck naked and screaming that I was Superman and I could fly. That was very nice of you." 
Me: Sigh. "You're welcome."  So much for trying to “help”

New Jail shoes perhaps?

Another defendant facing his sentencing took the time to inform the court that he “had read a law book about this down in the jail and the charge is illegal”.  He went on to suggest that the Judge was illegal, the prosecutor was illegal, and that everyone in the courtroom was illegal.  I’m not even running for President and this guy apparently wants to see my birth certificate!  He is now serving time in a prison.  I’m sure that’s illegal too.

Just yesterday, a young man faced 7 years in prison for a litany of offenses.  Despite multiple chances, and the herculean efforts of his family, he was in court again.  As I looked down, I noticed his bright orange jail shoes.  On the sides, he had carefully drawn the Nike “Swoosh” and adorned the back of the shoes with “NIKE” in black marker.  “Just Do It” is NOT a good approach to crime.

Though always good for a humorous story or two, the criminal system often reflects the symptoms of what ails us as a society.  We deal with the results of problems more often than the source of them, and that is decidedly NOT funny.  Sometimes it’s obvious, such as with drugs.  Sometimes it’s more subtle, such as when a young man is more concerned with labels than the law. 

Drug problems are easier to address than values problems, but good prosecutors work with law enforcement and judges to remedy both with the tools the law provides. Sometimes it works.  Sometimes it doesn't.  A thick skin and a good sense of humor help a lot, because none of us are Superman either.

"Are you going to be here tomorrow?"

This innocent question has become part of the night time routine. Spoken in the cutest 8-year-old girl voice you’ve ever heard, it echoes like the war drums that will soon change my answer to her question. 

I would prefer to tell you a story of the courtroom or some silly criminal caper, but this blog is about what I’m doing, and what I’m doing of late is more about preparing to deploy with the Army.  Perhaps in some way I can take you on the roller-coaster with me.  I suspect there will be a great many ups and downs, but hopefully, in the end, it will have been worth it. 

I’m not doing anything that a half a million other Soldiers and their families haven’t endured before.  I’m neither special nor different.  I will likely be as safe as one can be in Afghanistan.  Lets face it, if your lawyer is returning fire…something has gone horribly wrong.  My job is not inherently dangerous.  There will be no movie entitled “Lone Solicitor”, though I think Daniel Craig would do a marvelous job if he can manage a Midwestern accent.  The thing is…its still hard. 

It is a hard thing to leave your wife, even when you know that others are there to support her.  It is a hard thing to leave your children, even when there are others who will help care for them.  It is a hard thing to put aside your cases, handing them off to co-workers (who have yet to complain of it in my hearing).  I am supposed to be there to do all of those things.  I won’t be. 

It is not my intent to whine (even though I am, just a little), but rather to document what I think every Soldier, Sailor, Airman and Marine feels when the Nation calls.    It can leave you downright schizophrenic.  The Soldier is eager to test his training and vindicate his service.  The husband and father laments every missed teacher conference, wrestling match, choir performance, or dinner time conversation of the year that hasn’t yet come.  For the most part, it has been so incredibly busy, that there has been too little time to dwell on what is to come.  Perhaps that is a Divine mercy.  As the day approaches though, it is the small things that are beginning to penetrate the noise.  Small things like the innocent questions of a little girl trying to understand what it all means.

“Yes, sweetie, I will be here tomorrow.”  

“Okay, goodnight daddy…see ya in the morning.”   That may be the secret to making the best of the whole thing; taking it one day at a time. Even so, I already dread the night my answer will be different.

Seriously though, I think Daniel Craig would be a good choice.

Prosecuting….the War on Terror?  The Docket deployed.

The big news for Docket Dynasty is that I am headed for Afghanistan.  No I’m not kidding.  Being a prosecutor and crusading against darkness and evil while juggling law school student loans on public servant pay just wasn't challenging enough.  I have therefore remained a member of the Army’s Judge Advocate General’s Corps, known as “JAG” for short.  It really isn't much like the old television show at all, though I believe I may be even more rakishly handsome than David James Elliott.  Yeah, I know…

I hesitated to post this as I don’t always know how to deal with the usual responses which range from “thank you for your service” to “Don’t go, can you get out of it?” (You’re quite welcome and No.).  I’m not doing anything that a half-million other troops haven’t done.  I don’t think myself “special”.  I’m just another guy doing his job…that happens to be in Afghanistan.  This fact will obviously change the character of my posts.  I don’t yet know exactly what I’ll be doing or if I’ll be able to post at all.  I do know that I will very likely be depressingly safe.  Yes, depressingly safe.  You see, I started my Army life as an Infantryman… a steely-eyed killer...a predator seeking America’s enemies…well, okay, I was just a grunt, but grunts are in the fight.  Though still a Soldier, my job now is that of a lawyer.  “Safe” in a combat zone is relative of course, but rather than firing my weapon and taking ground in the war against terror, I shall be reduced to an angry signature on various legal documents.   That stings a little.

From my family’s perspective, what I am most certainly going to be is GONE.  Not here.  Not gone for a minute.  Not gone for the weekend.  Gone.  This is the most difficult part for me.  It is not likely the most difficult for them.  I will have “three hots and a cot” and the camaraderie of a few thousand similarly situated brothers and sisters at arms, all of whom are willing to come to my aid and I theirs should the need arise.  Meanwhile, my lovely bride still has to cook dinner for everyone and get them to sports, music, church and school activities by herself, all while wondering if I’m okay (I will be) and whether I've told her everything ( I haven’t).  Furthermore, as a Reservist’s wife, she won’t have the usual complement of resources readily available to the families of my active-duty brethren.  Though I may covet your prayers, I covet them for my wife and family most.  If you really want to support your Troops, find a way to support their spouses.  If you’re inclined to ask, when she says “we’re fine”, help her anyway.  Nothing allows the Troops to focus on the mission like knowing their families are well taken care of in their absence.  I am learning the humility of need in ways I hope to remember.

Though still at home, the insanity has begun.  I think deploying Reservists are inherently schizophrenic.  The Soldier is ready to go and begin the mission.  The husband/father is already missing everything that hasn't happened yet.  The prosecutor is reluctantly handing off cases for others to work.   If I dwell on it much, my eyes leak.   I’m ready.  Lets get this thing going.   In the meantime, I hope to have the means and opportunity to regale you with what I’m assuming must be “one-of-a-kind” stories from the combat zone.  Here’s to 2014.  I hope it’s the fastest year ever!  

We WON!  It was HORRIBLE!

My audience (meaning, I suspect, both my wife and my mother) notes that it has been TWO MONTHs since I've posted anything.  Time flies.  There is a good reason which I will not address now, but it may well may change the character of Docket Dynasty for a few months.  Who knows, perhaps it will be more interesting!

I wouldn't have thought that trial practice and a high school English class would have much in common, but it it seems they occasionally do.

I have posted before about the purgatory that is Trial.  Murphy is always hard at work ensuring that anything that can go wrong will.   Need to play a video for the jurors?  Did it work two seconds before the jury came back in?  It won't work now.  Have you created a brilliant closing, replete with choreographed video, background music and interpretive dance?  The timing will falter, the music won't play and the dancer will trip.  There is NOTHING in the wide world of sports than can make you sweat like a snafu in the middle of trial.  Competitive swimmers can look relatively dry in comparison.

Having just finished the book "Lord of the Flies", my daughter's English teacher had her students put one of the main characters on trial.  Naturally, my daughter was assigned as the "prosecutor" and worked diligently with her team to make the case.   Her text to me after the trial:

"Dad, we WON....It was horrible.  The copier wouldn't work, so we couldn't get everyone copies and then I dropped the papers and they went everywhere....but we WON!

I know the feeling.

Elvis and the Judge

There are three things known to draw additional attention from a judge I appear in front of regularly.

First:  Lying.  Almost every defendant will be asked if they’re taking any drugs.  It doesn’t matter if they were huffing paint in the janitor’s closet before walking in to court, if they are honest, it won’t be as painful as being discovered in a lie.  If the mom/girlfriend/grandma/buddy they say drove them to the courthouse really is waiting outside in the parking lot, there will be no problems at all after they are introduced to a Deputy.  Get caught lying though, and it’s going to be a rough hearing.

Second:  Drinking and driving.  Obviously it’s bad enough if you’ve done it once, but if you are on probation for such an offense and do it again, it’s going to be a rough hearing. 

Third:  When your momma cries.   If your misdeeds bring your mother to tears, it’s going to be a rough hearing.  The poor kid today didn’t see it coming.  He thought it was going to be a quick plea.  It wasn’t the crime of the century, but he was young and dumb and had done some pretty young and dumb things…enough to merit criminal charges.  His parents drove him to court and sat in the gallery watching their teen deal with the consequences of his actions.  The judge was administering an admirable “judicial counseling”.  Then it happened.  His mom did what mom’s do.  She cried.  The judge noticed.  He then invited the parents to the podium, and pointed out the tears.  “You’ve made your momma cry!  Are you proud of that?”  “No, sir” was the strangled reply. 

I’m not sure if the judge is an Elvis fan or not, but whether musician or jurist, the principle is the same.  It’s bad news when momma cries. 

Apparently no stranger to the experience, the judge continued:  “I made MY momma cry once.  Once, and I’ve never forgotten it.  Am I ever going to see you in this courtroom again?  Are you going to put your momma through this again?”  “No, sir.”  The emotion had clearly burned through the bravado.

In that moment, I think he was telling the truth.  I hope he was.  For his momma’s sake.

Criminally Civil?

Remembering why I chose criminal practice.

There are times when “going private” seems wildly attractive.  This usually corresponds to making another student loan payment or planning another car repair.  Otherwise, I find criminal practice to be exponentially more interesting, collegial, and frankly, fun.  I was again reminded of this just last week.

As I sat in court waiting for the judge to call my case, the public defender and I were treated to a hearing in a hotly contested civil case.  Even after sitting through it, I couldn’t tell you what it was about.  It had something to do with a promissory note worth nearly a million dollars.  The hearing became a bit of a spectacle for all who watched.  This is what I’m sure I heard:

Plaintiff’s  Attorney:  “Your Honor, I filed a Motion that means I win.  Please declare me the winner.  By the way, the Defense has questionable parentage.” 

Defense Attorney:  “Your Honor, we filed a similar motion that proves they are lying and undeserving of any compensation.  I’m sure we can all agree that his sister is easy.”

Plaintiff:  “We were first, having filed on Friday, and my suit is more expensive.”

Defense:  “It was NOT Friday in Australia, they have lied again.  My shoes are nicer.”

Plaintiff:  “I would like a trial date as soon as possible to avoid additional costs and to avoid trampling my vacation to Bali.  My tie cost more than that prosecutor’s suit”

Defense:  We just received the response and need additional time to bill our clients before resolving this out of court.  My tie cost more than the public defender’s entire ensemble.” 

The exchange was so comically spirited that the public defender leaned over to me and commented: 

“Almost makes you feel like you and I are on the same team, doesn’t it?”

Yes.  Yes it does.

Our case was eventually called and his client was sentenced to 8 years in prison. 

For the record, I thought we were both dressed quite nicely.

Trial and Travail

Trial.  It is always a wonderfully bad experience.  Sweet bitterness.  Beautiful torture.  Horrific….well, you get the idea.  Trial is one of those things like High School or Basic Training.  When you’re in it, you can’t wait for it to be over.  When it’s over, you love telling the stories and wouldn't mind being back there again.  I mean it wasn't really THAT bad was it?

A trial is the apex of our judicial process.  It is a modern take on the gladiatorial arena.  We indulge the almost mystical belief that when information is thrown in to the crucible of two adversarial attorneys testing every fact with the fire of passionate advocacy, the truth alone will sit glowing and refined in the ashes of all falsehood.  While there may be no final death blow, lives definitely hang in the balance.  It is not just the defendant, but the victim, the families of both and the friends who love them who will be forever impacted by what happens.

Trial can also be funny.  In jury selection I've had jurors discuss everything from breaking and entering in the Philippines  to having their hot air balloon stolen (in what must have been the sloooowest getaway ever).  In our last trial, counsel ceased being adversaries and became professional colleagues for long enough to swear in the former law clerk now lawyer who’s Bar exam results had just been released… and then resumed waiting for a verdict.  Misplaced exhibits, lawyers getting the flop sweats, technology never working like it did two minutes ago before the jury walked in; all of it adds to the drama that is a trial.

My co-counsel and I had one go our way last week.  It was a tough case, but in the end, the jury did the right thing and convicted.  A trial victory is always a great feeling.  It is perhaps even more so when you think the lawyering might have actually made a difference (likely a rarer occurrence than we lawyers like to think).  Even then it is hard to wax triumphant.  Justice has been served, the victim is safer, and the defendant is headed for a much deserved prison term, but the family is still a wreck, the crime still happened, and all are left to deal with the aftermath as best they can.

Thus are the vagaries of trial.  On to the next one, we go.  The crucible awaits.

Courthouse High

Do you remember that feeling?  The one you had back in High School.  The dance is coming up.  You haven’t asked her out yet, but you’re pretty sure that no one else has either.  You’re not even sure she’s noticed you, but being a man of action you have a plan.  Because you’re in High School, that plan likely involves two bottles of Axe body spray and a detailed wardrobe review…but it just might work.

Welcome to jury selection.  It feels exactly the same, at least for the attorneys.

Should I use product in my hair or is that too pretentious?  What if they don’t like product?  If I do use it, will they think I’m self-absorbed and not like me?  What suit should I wear?  Does the dark one make me look somber or does it make me look like an undertaker?  Will the lighter suit make them think I don’t take this case seriously?  Do I wear the “I’m a conservative prosecutor” tie, or do I go with the flashier “I’m gonna take you all to the SHOW!” tie.  Cologne?  No cologne?  We all know that at some point in the trial, I’m going to get the flop sweats, and maybe the cologne will help cover the scent of fear.  If I wear it, how much is too much?  Is there a sweet spot between “Hi, I’m a middle school boy borrowing my dad’s love mist” and “How YOU doin’ juror number 34?”  Tie bar, or no tie bar.  My watch is silver and my tie bar is gold.  Can I mix those two?  What if they notice?  If they DO notice, what will they think?  Am I gaining weight?  Is that a zit coming on?  Oh sweet heaven, not NOW.  Shoes, oh, the shoes…brown or black?  Do black shoes go with a blue suit?  I don’t think so…but then what about the belt?  Should I eat breakfast?  If I do, I could get gas.  If I don’t, my stomach will make objections in open court.  Is my collar shrinking?

All of these thoughts course through my mind in about a nanosecond on the morning of jury selection.  I’m not sure that any of this makes a difference.  Certainly I shudder to think that a juror’s decision could ever be influenced by my choice of tie.  On the other hand, I think I just caught juror 34 checking me out.  Awww yeah.  I hope my tie said “Guilty”.