Stuff like this helps inform people about how the American justice system works for at least some non-elites. This a total hoot but packed with details about how it works:
When you’re a public defender, you’re pretty useless — until suddenly, you aren’t
I am a public defender.
I am the vanguard of justice. I am the bulwark against tyranny. I am a hoot at dinner parties. I am this author’s Tinder bio. I am venerated by the new progressive zeitgeist.
I am the corporeal manifestation of professional burnout.
I am useless. So fucking useless.
There’s a dull reality to my job, which is that my clients have almost always done the thing they’re accused of doing. And usually the evidence against them is overwhelming — not even a close call. Yet I am duty-bound to poke, prod, and bluff my way into exaggerating a weakness with the government’s case. This usually doesn’t work.
For example, one time a client was picked up for his sixth drunk-driving incident. He had been prohibited from driving eons ago, but that hadn’t stopped him before. In addition to DUI No. 6, he was charged with fleeing the scene after crashing into another car. The fleeing was ineffectual, if only for the fact that he literally imprinted his license plate number onto the other car. I saw the picture of the imprint, with a mirrored alphanumeric sequence perfectly legible on the metal body. Cops found his car billowing thick, black smoke in a parking lot in front of a nearby AutoZone. My client hadn’t gotten far from the scene: He was in the driver’s seat, having already passed out and pissed his pants.
So yeah, when I meet with clients I shrug a lot and give the “what-do-you-want-me-to-do?” look. I try to shift delicately into the gentle social worker persona and talk about damage control, which invariably means telling them that accepting a plea deal is the least bad option. This is one reason why almost everyone chooses to plead guilty. Ninety-four percent of state cases and 97% of federal cases are resolved by a plea deal, to be exact.
All this means I inhabit a different role than you may think based on TV shows or the occasional op-ed about the noble role of public defenders. I’m not a special agent who parachutes into the enemy hideout to orchestrate and negotiate an elaborate hostage release; I’m just the widget inspector. I’m there to sit at the assembly line with a checklist on a clipboard and make sure that my client’s rights are not violated too much throughout the process. And we literally used a checklist for DUI cases — six pages of potential rakes we could only pray a cop stepped on: Yes, yes, you have video of the guy swerving all over the road, his speech is as slurred as mud, and he has a small cargo ship’s worth of empty beer bottles in the back. BUT was the temperature of the liquid simulator solution utilized as the external standard for the breath sample machine measured by a thermometer which was properly certified by the state at the time? Hmmm?
It doesn’t happen often, but occasionally the cops do fuck up. Sometimes they don’t notice the thermometer certification lapsed two days prior, and of course you pounce on that. But this almost never happens, and it also underscores how fungible my own contributions are. Anyone plausibly qualified could replace me and it would not make a difference for the most part.
I’m borderline useless, in other words.
But there are terrifying exceptions to this rote monotony that forever haunt me. Like the one time I cast a spell in court with eleven magic words.
***
This happened early, when I was still a baby public defender. My client (different from License Plate Man above) was an illegal immigrant from Mexico. He was already on probation for one DUI when he was caught driving drunk a second time, seven years after the first. A judge released him from jail provided that his family fork over a small ransom for bail and that he agree to having his whereabouts monitored by an ankle bracelet. He would have to come back to address his probation issues in two weeks.
The ankle bracelet company sends me an update a few days later. My client had visited their office, informed them that he intended to flee the country because he was scared of jail, then underscored his statement with a flourish by taking out a knife and cutting off the ankle bracelet in front of them. In terms of the ratio between effort and impact, this was easily one of the simplest ways he could have irredeemably fucked himself over. But I did not have time to dwell on this. His actions meant I had one less client to worry about, since clearly he had decided to take his chances on the lam rather than in court.
Two weeks pass and I’m in court. Just a normal day: I review the sign-in sheet to see which defendants, of the cases I had prepped, did me the courtesy of showing up. Our caseloads aren’t always as bad as advertised because many of our clients don’t come to court, for reasons ranging from malicious (they’re reenacting a certain 1993 thriller starring Harrison Ford) to banal (the notice was lost in the mail).
Then I see his name — Bracelet Cutter. I turn and scan the row of benches in the gallery and he’s quietly sitting in the back, apparently oblivious to the shitstorm of his own creation he has walked into.
I motion for him to step out in the hallway and my first question is “What the FUCK are you doing here?” He looks down, ashamed, and explains he realized that if he had fled, his family would have remained liable for the bond they put up to get him released. “I am here to take responsibility,” he says.
There was no need for me to pillory him any further. He panicked and fucked up, but that was done. Unfortunately, I was completely ill-prepared to handle his case, as I had reasonably assumed he had successfully peaced out of the country (and out of the justice system’s grasp) by now. We went in front of the judge and I announced that my client was turning himself in to jail so that I could better prepare for his case. We’d be back in court in another two weeks.
***
In part because of those aforementioned stats on the frequency of guilty pleas, public defenders have garnered a reputation for being trial-averse, for pressuring clients to cop a plea just to keep the machine humming along. I think this reputation is ill-deserved. It’s completely counter to my own experience, at least, as few things are talked about with as much awed respect among one’s public-defender peers as the number of trials you have accumulated. It’s the functional equivalent of an attorney’s XP level.
Jury trials are sexy and cool and exciting, even despite the abysmal prospects for acquittal. But the understandable focus on dramatic moments can cause people to lose sight of potentially far more consequential proceedings that lack the luster and allure. Like probation hearings.
I hate probation hearings so much.
The gravitational center of the criminal justice system is not the judge, but the prosecutor. Prosecutors can summon criminal charges from the ether or dispel them into nothingness, if they so choose. The Trial Tax is real, so if you want to avoid getting resolutely fucked at sentencing, your best bet is to play nice from the start. This is what makes accepting a plea deal so irresistible to so many clients. Judges say they ultimately decide — sure, whatever — but in practice, a prosecutor’s offer recommendation is virtually guaranteed to be adopted. Judges are busy, and the vast majority used to be prosecutors themselves. A current prosecutor’s blessing on a deal is generally all the oversight a judge cares to invest. If the deal recommends no jail time, you’ll get no jail time. This is what I told all my clients, and it was always true.
But there’s a caveat, in that many little- or no-jail deals are paired with a laundry list of legal obligations that are monitored by the courts for many years. In addition to not committing new crimes, the obligations can be as simple as attending a class about how drugs are bad. Courts enforce this scheme by imposing the statutory maximum amount of jail time (a year for most misdemeanors), but simultaneously suspending nearly all of it. Think of it as setting aside a bucket of jail days that can be doled out as needed if a client didn’t adhere to the agreement.
Doling from the bucket was what the probation calendar was for. Clients who had already pled guilty were summoned back to court because they had fucked up somehow and needed to explain themselves to the judge.
During these probation hearings, the prosecutor would recite the list of violations and recommend a sanction. My job was to come up with a plausible-sounding justification and make a counteroffer for sanction, and the judge would probably just split it down the middle. Sometimes it’s 30 days of house arrest. Sometimes 90 days of jail. If jail, sometimes clients had a week to turn themselves in. Sometimes the court marshals were summoned to take them to jail immediately. All this in the span of 5-10 minutes per person, one after the other. Assembly line humming.
***
Generally, we had no way of knowing when someone would be summoned back to court for a probation hearing until it was scheduled. Our paralegals scanned the calendars and dove into our archives to retrieve a client’s file. I tried to call my clients prior to court appearances, but this was often a lost cause as numbers were frequently disconnected, out of service, or linked to full voicemail boxes. The best that you could eventually hope for was for the client to actually show up to court so that you could confer for the requisite five minutes in the adjoining hallways and stairwells before the proceedings.
But as much as Bracelet Cutter fucked up his prospects in other ways, at least there wasn’t any question as to whether he’d show up for his hearing — he was in jail, after all. I swung by with an interpreter (his English was passable, but not great) to fill him in on the details and answer his questions. I felt ready for the hearing.
The day came. Bracelet Cutter’s mother, wife, and children were in attendance in the gallery. The court churned through its list of cases until it was our turn.
Recall how plea deals are structured, and how the entire purpose of a suspended jail sentence is to dangle the anvil over someone’s head to “encourage” them to do the things they’re supposed to do. The bargain means you avoid jail time so long as you meet your obligations. But what if, perhaps through your repeated and extended frittering away of your opportunities to stay out of jail, there is no realistic expectation you’ll ever meet your obligations to the court? Rather than continue burning up the court’s resources, judges could instead impose a hefty jail sentence now and just close the file. This is affectionately known as “Impose & Close.”
On this day, luckily, the prosecutor was not feeling particularly bloodthirsty. He was going to recommend the mandatory minimum sanction of 48 hours in jail, which my client had more than already served by now, and leave the rest of the jail time suspended, meaning he wouldn’t have to serve it as long as he behaved himself. I was more than happy to cosign on that recommendation, excited to see the judge rubber-stamp our joint agreement.
Despite the good sign, though, I was still cautious — I had not walked into the hearing with much confidence. I knew that my client’s decision to cut off an ankle bracelet and threaten to flee to Mexico was going to be on the judge’s mind, and I knew that the worst approach with her would have been to ignore the issue completely. After effusively agreeing with the prosecutor’s recommendation, I got ahead of the issue. I started by acknowledging what happened, framing it from the standpoint of a poor guy panicking in a stressful situation, and highlighted the extended meeting I had with him while he was in jail. His family members in the gallery served as helpful props in my argument. After all, why would he flee the country when *gesturing widely* his family is right here?
This did not work. The judge said that she had no confidence that my client would be able to meet his legal obligations. She then turned to the prosecutor and asked what the recommended jail sentence was to close the file out. Which meant Impose & Close was happening.
This was a full-blown red alert moment, and by far the worst possible outcome. Now that a probation period appeared to be off the table, the prosecutor was no longer tied to asking for just two days in jail. The price to close the file would be 180 days. I stood up and did my best to slide in and emphasize that neither party requested to close out the file, and repeated my spiel.
The judge politely listened and then imposed 180 days in jail. The reactions came in waves — my client’s mom yelled out in anguish first because she could understand the judge, and then her son followed after the court interpreter delivered the bad news in Spanish. My client was handcuffed and slumped in his chair, disconsolate. This didn’t just mean six months in jail; ICE kept watch over the local jail rosters, so the sentence was not only long but virtually assured his deportation.
I tried to focus, to ignore the sudden cacophony reverberating around me. I remained standing and stared at nothing in particular. Fifteen seconds passed. What now? Was there anything I could do? Was there anything I should do?
Thirty seconds passed, and the only audible sound was the shuffling of paper and murmurs across the gallery. I figured it wouldn’t hurt to try, so I strung together a hastily improvised request to the judge — hereafter known as the Eleven Magic Words:“Is there anything the court would like to review to reconsider?”
There are words recognized within legal circles to have near magical properties. The Supreme Court will tell you that all you need to immediately and forcefully end a police interrogation is to unambiguously ask for a lawyer. Declarations etched in steel by a dying man have the power to move trillions in assets. Even the lowly comma, or the absence thereof, can overturn entire industries. But the eleven words I uttered that day are not valorized or dissected by any scholars. They shoulder no inherent legal significance. And yet, they earned their title for what happened next.
Nothing but silence now. The judge peered directly at me over her glasses. She then asked for the file back from the clerk and barely even opened it before announcing, “All right. Mr. Meskhout, I’ll go ahead and give him an opportunity. Since you have asked.”
The judge then imposed two days in jail. Two days instead of one hundred and eighty.
The cacophony started up again — outcries of joy (and some confusion) this time rather than anguish. I gathered that neither my client nor his mom quite understood what the fuck had just happened. I certainly didn’t.
“Since you have asked.”
My heart rate skyrocketed and my eyes twitched. I remained standing and did my best to maintain composure.
“Since you have asked.”
I kept replaying that sentence over and over in my head. This wasn’t how it was supposed to work. I was not supposed to have this much power. I’m supposed to be useless, remember? A widget inspector. There was something thoroughly unconscionable about what had just transpired. I uttered eleven magic words in the right combination and this man’s life trajectory shifted radically, likely from near-assured deportation to continued freedom in the United States. I am not supposed to have this much power.
To say that I felt fear is an understatement. But I kept all of this to myself. This was my last hearing for the morning and I could go back to my office now and process at my pace.
I hastily scrawled my signature on the court order and walked out of the courtroom. My client was escorted out by the jail guard right behind me. Normally, inmates get their hands and feet shackled together before they step out. My client was completely unshackled. And normally, the jail guards waste no time heading to the security elevator they have exclusive access to, but my client was headed in the opposite direction.
I saw where he was going. His children had been sitting on a bench in the hallway. My client ran forward and bent down to embrace them both, and all I remember him exclaiming was “¡Niños!” The jail guard was calmly walking right behind this unfolding security breach beaming and carrying the shackled chain in his hands. My client finished hugging his children then promptly stood up and placed his hands behind his back to be shackled again. The guard and my client continued taking the long way to the security elevator.
I was awestruck by the unexpected display of humanity by the guard. I have no idea when they negotiated this, but he broke all kinds of protocol just to let my client have this brief embrace with his children.
I walked into the main elevators by myself, watched the doors close, and waited for the cab to start moving. Once I knew I was alone and safely insulated by several layers of steel and concrete, I finally let out the primal scream I had been holding in this whole time.
Once the heart palpitations calmed, I reflected on what transpired. I certainly would love to believe it was the Eleven Magic Words that did the trick that day — that would reflect well on my legal acumen and provide me a modicum of agency within this chaos. But that is a self-serving delusion that would also imbue the criminal justice system with a patina of legitimacy it has no rightful claim on.
In all likelihood, the judge changed her mind because fuck you — that’s why. They’re human after all, subject to the same tempestuous emotional storms as the rest of us, including the same impulses that might prompt you to idly fantasize about a horrific vehicular rending of the guy who just cut you off on the road. Despite that human fallibility, they’re nevertheless endowed with a terrific amount of real power over other people’s lives. Maybe if they’re addressed as “Your Honor” enough times per minute, they’ll believe it and act accordingly.
Or maybe I should jettison the fake humility and just take credit. Based purely on the sequence of events (I said something, a thing happened), I have a legitimate basis to exploit this story to flatter myself and impress attractive individuals. Yet this too has horrifying implications.
Either way, every day since, I wonder whether I will clock out at the end of the day as the mild-mannered widget inspector I normally am. Every morning I wonder whether that day has Eleven Magic Words and, if it does, whether I’ll be able to figure them out. And every day that potential scares the shit out of me.
And yet, I still do the work. I’m still a public defender.
Well, at least I thought that was funny.
No comments:
Post a Comment