All The Power

Adrian keeps telling me:

Sometimes I wish we just dealt with those people from Hellraiser instead of some prosecutors; then, at least, my mom could understand why my job is so damn frustrating.

I went to court a while back for a felony DUI client. Absurd mandatory minimums and absurder (this can’t be a word, but Google says it is so I’m going with it) plea policies from most prosecutorial agencies make me hate these cases. That combined with the fact the crime isn’t so much something someone might know they’re committing but rather possession of an arbitrary amount of something in their blood as determined by a machine that might not work makes for a killer cocktail of injustice. When the crime is something designed to insure you lose and the state can make its case with just a couple of professional witnesses trained to help convict, there’s a horrific amount of leverage against defendants.

To my surprise, though, the state actually made a relatively reasonable plea offer to my client. Taking into account policy and trial exposure, the plea was downright awesome. We said we wanted to accept it. We said we wanted to accept it ASAP, in fact, but the prosecutor was in no hurry. We couldn’t get it in advance. We had to file some sort of silly plea request form, and then we had to wait all morning for him to type it up back at his office. Silly me, I didn’t realize that writing a plea is like smoking a brisket. It takes time. You can’t rush it. Low and slow, I guess.

Apparently, also like BBQ, pleas don’t always turn out right either. When the prosecutor delivered the plea hours later, he had no time to sit with me as I checked for errors. No doubt he had to get back to put finishing touches on the next Sistine Chapel of pleas he had to prepare. Alone and with no way to summon him back in any reasonable amount of time, I went out to review the offer with my client. He was satisfied with every term except for one: it said he had to have gang terms as part of his DUI probation.

I contacted the prosecutor, and he was upset that he spent so much time crafting such a beautiful plea and my client and I weren’t pleased with it. He pouted, and then he said something I’ve heard all too often:

If your client isn’t in a gang, he won’t have any problem with gang terms.

I asked him what gang terms were, and he had no clue. He was insulted that I would challenge him. “It’s stuff like don’t hang around with gang-bangers,” he said. That was all he knew, so I went to the court to get a copy of the actual gang terms my client would have to follow. I discussed them with the prosecutor:

ME: The terms say he can’t go near a school
HIM: So what?
ME: Well, he designs and installs IT infrastructure for government buildings, including schools
HIM: He drove drunk
ME: He’s a dad with kids he picks up from school
HIM: He should’ve thought about that before he drove drunk
ME: It says he can’t go to court unless he has a hearing too
HIM: So what?
ME: Well, he does the same thing for the courts
HIM: We don’t need drunks doing that stuff anyway

Seeing that my approach was getting me nowhere fast, I changed tack:

ME: Why do you think he’s in a gang?
HIM: It’s in the file
ME: Can I see it?
HIM: No
ME: Really?
HIM: Yeah, we aren’t alleging he’s in a gang as part of the case
ME: But you want the terms?
HIM: He can take the plea or leave it
ME: Does he have a GIMIC card?
HIM: What’s that?
ME: It’s the thing your office considers the gold standard for gang membership
HIM: Huh

It went on like that for a ridiculously long time until I pressed for details about the gang:

HIM: He’s a West Side City Crip
ME: Why do you think so?
HIM: The file says so
ME: He’s not the right race
HIM: I’m not a gang prosecutor
ME: Why are you asking for gang terms then?
HIM: Quit making excuses for your client

He wouldn’t budge, and neither would the charging attorney, his boss, and a bunch of others up the chain of command. They held firm and made it clear that the offer would expire. They emphasized that failure to accept the plea that morning would result in a much harsher plea later on.

I went and met with my client to discuss the situation. He was baffled:

HIM: I’m not in a gang
ME: I know
HIM: I’ve never been to the west side
ME: I know
HIM: I’ve never heard of that gang
ME: I know

We went into the courtroom and affirmed the next hearing. The coverage prosecutor, someone new and even more clueless, insisted that we advise my client on the record that the plea offer would be withdrawn if he did not accept it right then, and that the next offer would be far worse. My client stood there with his pressed khakis and dress shirt, neatly combed hair, and class ring from where he did his undergrad. I heard snickers from the defense table and the gallery as I made a record about the silliness of the gang terms:

Heh. Sure looks like a gang member

The judge was as confused as my client and I were, but she was helpless. There were face-palms all around, except for at the prosecutors’ table, where they scowled intimidatingly at my client.

Afterwards, I made contact with a very reasonable supervisor in the group of prosecutors who would eventually be prosecuting my client. She was rational and apologetic, telling me I should just notify her when we got a new date so she could re-extend the offer. Two hearings later, however, no one from her office had been assigned and she never got back to me. Eventually, I went to court and got the name of the person who would actually be prosecuting the case. Nothing from him either, despite hours of extra court and who knows how many other filings. Finally, I got an email. It had a new plea. With a bunch of prison.

I responded, describing the situation and pointing out the ridiculousness. The only response was that “it doesn’t have gang terms.” My client now faced a bunch of prison at trial and a plea with a bunch of prison. He wanted the first offer. Because of someone else’s mistake, he had to choose between 1) the fair plea he wanted with inappropriate terms that would ruin his life and 2) a whole bunch of prison. Now, he only had two versions of the second option. Until I finally got a call:

Turns out your guy was never in a gang. Our bad. Want the original plea back?

It was truly amazing. A miracle, really. It’s unusual for anyone with so much power to acknowledge a mistake, and even more unusual for someone to fix it. I felt grateful for a second, and then I shook my head.

Next time someone complains about clogged dockets, overfilled prisons, and a lack of respect for the law, don’t blame the defense attorneys. We often have no leverage. We often want the same thing any reasonable person would want. We aren’t the ones with all the power. The Cenobites that sometimes appear on the other side, however, seem to regularly delight in our pain and the pain of our clients.

If Adrian’s mom and the general public got to see that, maybe we’d get a little more respect.