Friday, December 11, 2009

Sometimes When You Lose, You Win

When I was a Paramedic, some of the most difficult days involved witnessing the senseless violence and death that have become commonplace in society. I remember a man who was shot in the stomach for the rims on his car. I remember holding the lifeless body of a four-year-old who had choked to death while eating a hamburger alone in his bedroom. I remember the 18-month-old who was raped by her babysitter's boyfriend. I remember the way I felt inside when there was nothing more I could do, though I had done everything possible.

As a
Criminal Defense Lawyer, the most difficult days are not too different and I had one of them last week.

My client, a 31-year-old black man with two strikes on his record and just days away from cleanly completing three years of parole, was arrested and charged with furnishing marijuana to a minor.

It seems my client was one among a group of individuals standing together in an alley behind a home. One of the individuals in the group produced and began smoking
marijuana from a pipe. In the ultimate demonstration of bad timing, a police car turned into the alley and witnessed the individual smoking. Naturally, the officer commenced an investigation and called for backup.

When the officer questioned my client, he was immediate, honest, and up-front. "Do you have 'anything' on you?" the officer asked. "Yes," my client answered, "I have a little bit of weed and my California Medical Marijuana Card." He produced both for the officer and further explained his status as a parolee as required by law. In keeping with department policy, the officer cuffed my client and sat him in the patrol car.

However, when my client told the officer about the medical marijuana card, the other three individuals - mere acquaintances of my client - seized the opportunity to save their collective skins. The officer quickly identified the [the only] individual who had been seen smoking as being 16-years-old. "Where did you get the weed?" The officer asked of the boy, now fearful of what his father would do to him when he got home. Knowing that he had pulled it from his own pocket, he nervously told the officer, "he (my client) gave it to me because he has one of them cards that makes it legal." The other two chimed in with their sudden agreement, "...yeah, that dude has a's legal." And that was all the officer needed.

The boy was sent home with his parents and the other two were released at the scene. My client was booked, processed, and charged with a felony. The police report and the witness statement had more holes than a block of Swiss cheese, but one thing was consistent: the witness statements all matched and were in diametric opposition to my client's story.

At the arraignment, the District Attorney made no plea offer. "This is a third strike," he told me, "we want 25 to life." While I was dumbfounded by the coldness, I was not surprised. A conviction of third striker is just what an up-and-comer needs to boost his résumé. It didn't matter. My client was factually innocent of the charges against him. I was ready to fight. Nevertheless, in the interest of full due diligence, I did ask the Judge if the Court was willing to extend an offer. And much to my surprise, the Court offered to strike the strikes and give my client the statutory minimum of three years at half time; with good time credits he would likely be out in about a year.

Graciously, the Judge gave us a week to consider the offer. My client went back to jail and I went to work. I had five work days and a weekend to carefully evaluate and determine the strength of their evidence, the strength of our evidence, and to find any other evidence that could help...or hurt.

By the end of the week my private investigator had interviewed everyone involved and even found a missing witness who had left the scene just moments before the police arrived (no, there was no connection). Although the minor told my investigator that someone other than my client handed him the marijuana, he would not fess up to the fact that my client did not even provide it.

By the end of the week I had employed - at my own expense - another Criminal Defense Attorney and a legal researcher to work with me to uncover and consider every possibility. We all worked overtime.

Was the boy an accomplice? Not within the statutory meaning. Was the boy's statement that my client did not physically hand the marijuana to him relevant? Not the way "furnishing" is defined and applied in the case law. Was the fact that my client did not know they boy, much less that he was under 18 helpful. Nope. Strict liability. What about the holes in their story... that they didn't know my client, but that he gave them free weed? What about the other stuff they said (but I cannot discuss here)? The only way to challenge it would be my client testifying at trial, where the DA would be able to ask my client about his previous felony convictions - even though they were not drug related. The jury is going to believe a two-striker over the testimony of three or four others with minimal or no records at all? Not likely. And not worth risking the rest of this man's life.

By Friday, I was exhausted as were my options. A private investigator, a legal researcher, and two attorneys had spent countless hours looking for a way to exonerate my client. To no avail.

As I drove to the jail to deliver the inevitable advice, I racked what was left of my brain. Nothing. When I got there, I looked him in the eye and broke the bad news. "We can take this all the way...and we might even win, but if we don't you are going to spend most of the rest of your life in prison... all the while knowing you could have been out in a year. I understand the principle, but sometimes when you lose, you really win." Had he wanted to go all the way, I would have taken him there and the fight would have been tough. But the risk was just too high. I advised him to accept the Judge's offer.

Driving away from the jail, I felt a burn in my gut. I just advised an innocent man to accept a year of prison. As I drove, in a last ditch effort and with really nothing to lose, I called the DA. The call was friendly and nice, but the bottom line was simply stated: "...this office never extended any offer. We want your guy for twenty-five to life on the third strike. You want me to make a better offer than the one we never made to begin with? I admire your fortitude and your client is lucky, but it's not going to happen."

As I drove back to my office, with the setting sun piercing through the clouds, I replayed everything in my head: Two-striker. Marijuana card. Group of strangers. Marijuana smoke. And I was reminded of a sound bit of advice that Warren Oates offered Roy Scheider in the movie Blue Thunder: "When you're walking on eggshells, don't hop."
When you find yourself in trouble with the law, I will fight for you with every ounce of strength I have...but I will always tell you how it really is.

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