Category Archives: LEGAL ISSUES

PRETEXT STOP

Having a reason to arrest someone is one of the most important tenets in our legal system.  We don’t want to live in a world where the police randomly stop people as they go about their business.  Worse yet is if the police target certain groups and stop them in the hopes that they may be doing something wrong.  The idea is that the police should have “probable cause” to stop someone or pull someone over.

With driving, it is fairly easy to find a reason to pull someone over.  We frequently go over the speed limit, glide through a stop, change lanes without signaling, or find ourselves blocking an intersection in city traffic.  We also have expired tabs, or a brake light that is out.  So any of us can be legally pulled over for investigation of a traffic infraction.  But what if it changes suddenly into a criminal investigation?

One argument that defense lawyers make in these kinds of pullovers where there doesn’t really seem to be enough of a reason to switch to a criminal investigation, is that it was a “pretext stop”.  They argue that a police will find someone they want to pull over, then find some pretext to pull them over, and then look for signs of crime such as drinking and driving, or an illegal weapon.

I was interpreting for such a case, and the argument then revolved around how long the police detained the individual, and whether there was coercion or pressure on the person to stay, before he was formally detained.  I believe they were waiting for a backup police who was bilingual, so they asked the suspect to just stand by, and he agreed.

The judge ultimately ruled that the detention was not unreasonably long, thus it was not in fact an arrest.  She further ruled that the possibility of coercion (the fact that the suspect may have felt pressured to stay) does not mean that whatever the suspect said was a “coercive statement” and thus could be suppressed.  In this case, before he was arrested, this suspect decided to chat in his broken English about his girlfriend leaving him and his subsequent beer drinking.

Why does it matter when the arrest happens?  Well, for a very good and important reason.  Anything you say after you are arrested – but before you are read your Miranda warnings (you have the right to remain silent, etc.) canNOT be used against you.  But anything you say before you are arrested can.   At least in broad terms, that is the concept.  You do not need to be told of your right to remain silent unless and until you are arrested, and until then you are theoretically free to go.

The problem defense attorneys have with a pretext stop is that their clients are getting pulled over for a minor infraction, say a turn signal, when the police all along hope to investigate for a DUI, but they have no reason to suspect it, just a hunch.  So they pull someone over for a minor traffic infraction, in order to investigate a crime without probable cause to do so.

There is a lot of push and pull about this in the pretrial motions before each case is set for trial.  If the defense is able to suppress enough of the key evidence, the prosecutor may have to offer a better deal, or even drop the charges.  If the prosecutor is able to admit the damning evidence, the defense attorney may urge their client to take whatever deal is on the table in order to avoid the harsher consequences of trial.

Most judges in my area tend to make sure the United States Constitution is honored and people are not coerced to testify against themselves, even if it means somebody gets a free ride.  As famous common law scholar William Blackstone wrote back in 1765, a dozen years before the United States was born:  “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.”

Because I struggle with this concept, I must add John Adam’s 1770 explanation of why it must be so: “We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security whatsoever.”

TO BE CONTINUED

I was on the trial setting calendar the other day and the judge demanded that a certain number of cases, which she read out in a list, be brought on for a hearing.  She didn’t want to just sign off on them without scolding the attorneys for the delays.  She read off the list, stating how many times each case had been continued, and then sarcastically mentioned that the “winner” was the case that had already been granted a whopping 18 continuances.

Continuances are usually for 30 to 45 days, so this case had been pushed along for close to two years by now.  One lawyer quipped that the judge by calling that case the “winner” wanted other lawyers to aspire to that many continuances in their cases.  The judge of course clarified that she wants the lawyers on these cases to either “fish or cut bait”.  This means make a final decision on whether to accept whatever best offer the prosecutor has made, or set the case for trial.

Many people know that in the US system, an accused criminal has the right to have the case taken to trial within 60 days if in custody on that charge, or within 90 days if not in custody on that charge.  But the right is largely theoretical, in the sense that very few cases have all the discovery completed and reviewed within that tight a timeframe.  On serious charges, there may be multiple experts who take months to review the evidence and submit their reports.  There can be codefendants each with their own lawyer and their conflicting trial schedules.

Priority must be given to those in custody.  For those out on bail, most parties are not in a hurry.  Putting off a trial for a year or so may even help their defense.  Witnesses may forget some details, or move out of town.  Even if they are going to end up in jail, they are not necessarily in a rush to have that happen.  The populations we interpreters work with are also facing deportation, and the life changes that will entail.  So rushing to trial is not always the best plan if you can be out and working while you wait.

For those sitting in the county jail awaiting trial, it is a different story.  I have seen many cases where the defendant himself is opposed to the continuance, but the judge grants it anyway.  Either one of the lawyers is not going to be available, or a key witness is not around.  Guilty or innocent, it must be hard to be sitting in jail and having hearing after hearing where you are told that someone is on vacation, or in another trial, or some evidence that has been around for five months just wasn’t forwarded yet.

For attorneys, though, taking a case to trial without being fully prepared is not an option.  And having someone plead guilty just to get out of jail carries its own risks.  The newly convicted person will likely be put on probation, which means facing additional jail time, for up to five years in some cases.  So the case isn’t really “over”.

The right to a speedy trial when it conflicts with the need to be fully prepared means the accused is truly being caught between a rock and a hard place.  Or as one language would have it, with your back to the wall and a sword pointed at your chest.  Not an easy place to hang out and wait, for months on end.

For crime victims as well, waiting and expecting to have to testify only to have it put off again and again must be agonizing.  The victims have already been traumatized, and each time they are told a new trial date, they must prepare mentally for reliving the crime.  It would be nice if the process could be streamlined, but it doesn’t seem realistic in the current system.  So “speedy trial” will remain less than speedy for the foreseeable future.  And cases are destined to be continued.

 

 

CREDIBILITY

“Prosecutorial misconduct!” objected the defense attorney during the state’s closing argument.  What had the prosecutor argued that could have potentially misled the jury?

“We all know that the defendant has the presumption of innocence. But once he decides to take the stand, as he did in this case, he does not have the presumption of credibility. He must be viewed and treated like any other witness.”

The defense attorney argued that the state was improperly shifting the burden of proof onto the defendant, by virtually instructing the jury members to disbelieve him, which would mean he has to prove that he is innocent.

As the judge pointed out, though, the prosecutor had very carefully stated that the defendant is like any other witness, and his credibility should be scrutinized by the jury like any other witness, in order to decide whose word they believe.

So the objection was overruled, and there was no mistrial.

Since the 1800’s when defendants in the US gained the right to testify on their own behalf, there have been ongoing arguments over what jury instructions must say about defendant testimony.  Jurors must presume the defendant is innocent until proven guilty.  But jurors do not have to swallow whole whatever the defendant says on the stand.  So how can we tell the jury this, without making it sound like they should presume guilt?

The general consensus now seems to be that jury instructions should include the fact that it is up to the jury to determine how credible all witnesses, including the defendant, appear on the stand.  But it would be unfair to single out the defendant’s testimony, and ask the jurors to presume anything other than his innocence, until his guilt is proven beyond a reasonable doubt.  A fine line, indeed.

 

 

IN THE INTEREST OF JUSTICE

Take a man who gets caught selling cocaine.  Punish him, right?  Or perhaps you believe in treatment.  But what if it was a very small amount, and a one-time thing, and he never even used himself?  Does that matter to you?

What if it also happened over a decade ago, and he has had no criminal events since then?  Most simple cases like this are set to go to trial in 90 days while the evidence is fresh.  This case was approaching thirteen years.  Does that matter to you?

What if he came to this area for work, was staying at a shelter, and his family desperately needed money before he could get any work.  He was gullible, he was sent out to sell, and he was caught immediately with the ten-dollar baggie.  Does that matter at all?

What if the life event he was trying to get money for was a very sick child, his daughter, and she died?   Do we care?  Does some amount of suffering wash away some amount of “sin” or criminal behavior?

What if he never received notice that there were these pending charges against him, that he had a hearing where he was to be arraigned, as he was homeless, then working at sea, then moved out of state?  And that the state never looked for him in the more than a decade between, all the while he got stable work, filed his taxes, had a driver’s license, and lived above-board.  Does that matter?

What if he was much later, after his surviving children had grown, trying to apply for permanent residence, and to his surprise found out there was a warrant for his arrest, and the first thing he did was to buy a ticket and fly here, possibly to go to jail, and then face likely deportation under the new, harsher regulations and policies?  When we add up the totality of this man’s life experiences, do we care?

The judge did.  For the first time in my career, and likely the only time, at the moment she was set to sign off on a guilty plea, the judge wiped tears from her eyes, and then just took a deep breath, and said: “Looking at the totality of circumstances, I find that I must dismiss this case in the interest of justice.  So ruled.”

 

RULE OF LAW

Through many years of working in a court system where the rule of law is well-respected, I have gained a great deal of faith in our legal system.  The judges are so careful to follow due process in all cases.  The attorneys can rely on the structures we have in place to ensure those rights granted to us in the US Constitution.  We have a system that is reliable, transparent, public, impartial, and fair.  I hope that is not going to change, because even for those who never end up in a courtroom, these rights are the underpinning holding up our civil society, and without these rights we fall.

 

MOTION TO EXCLUDE

Before a jury trial is held, the attorneys have the chance to make all kinds of requests or motions.  The focus of defense motions is to limit the information that the jury will be allowed to consider.  Anything obtained illegally or unduly prejudicial are first priority for exclusion, but there can be a long list of other items as well.  The facts of the case along with and a myriad of legal theories and constitutional rights combine to make these arguments for exclusion.

The following are just a few of the defense motions made in a fairly straightforward drug “Possession With Intent” to deliver, affectionately referred to as a “PeeWee” by the attorneys, because of the PWI acronym.

Any statements made by the detainee before being read his rights should be excluded.  Any recorded statements need to follow a strict Privacy Act consent rule.  Specifically, the arrested person must be informed on the recording that he is being recorded.  The police must state the start time of recording.  The police must begin by giving the suspect his constitutional rights warnings.  And there must be a statement of end time.  If any of this is done incorrectly, all or part of the recording should be found inadmissible.

Defense attorneys routinely ask that the defendant NOT be referred to as the defendant or the suspect, and that any victims NOT be referred to as victims.  This may seem silly on its face.  But the idea is that repeating such terms will be unduly prejudicial, influencing the jury in leaping to conclusions.  It is the state’s job to convince the jury that there is a victim, or that a crime has been committed.  Thus, it is common for judges to rule that the prosecutor must call all parties by their name.

In street-level drug cases, one person typically carries the product and another makes the verbal offers.  Once a deal is reached, and it looks good to go, the speaker will tell the carrier to pull out a package.  This can save some trouble along the way, if one is caught offering, for example, “black and white” (black tar heroin and crack cocaine) by an undercover police.  The carrier glides away, and the person speaking to the cop claims he was just joking around, and when frisked, he doesn’t even have any drugs, so how could he be selling?

If both parties are caught together, there remains the issue of whether they should be tried together, or each have their own trial.  There is an argument that trying them together would make them both seem guilty of any crimes their co-defendant committed, and thus make them seem more likely to have committed their share of the crimes.  Guilt by association.  Unless there is strong enough evidence to charge the case as conspiracy, the court may agree to sever the two trials.

Without a conspiracy theory, there is another defense motion to not admit anything that was not found on the person of the defendant himself – whatever the co-defendant was carrying, the argument goes, is not this defendant’s problem.  No photos should be shown – nothing in the police report should refer to it, etc.  What the co-defendant possessed should be considered irrelevant, unless the state finds a way to link the two cases more closely and show they were working as a team.  Unless and until that happens, the state must specifically prove the crime as charged, and is not allowed to beef it up with surrounding circumstances, what someone else had in his pocket, or other prejudicial persuasions.

To cut it even finer, let’s say one defendant was accused of offering, as above, crack and heroin, but was only found with a tiny bag of crack.  If the defense attorney prevails on the issue of separating out the two defendant trials, she can further posit that this defendant’s two charges (for crack and heroin) should be separated, because the defendant has an interest in testifying as to not having heroin on his person, but he will NOT wish to incriminate himself about the crack found on his person.  He has the right to testify – or not testify – and these come into conflict here.

As is often the case, this defendant was previously ordered to Stay Out of Drug Area, one of the so-called SODA zones.   The argument here is that calling the area where the defendant was found a SODA zone in front of the jury is prejudicial.  The fact that some people, including this defendant, may have been ordered to stay out of this zone, is not relevant as to whether he committed this new crime.  Again, creating suspicion with facts that are not relevant to the actual charge is considered unduly prejudicial.

A standard motion in all cases asks that witnesses testify based only on their own independent recollections and knowledge.  So there is often an order that the attorneys may not share any information with witnesses, and witnesses must be excluded from the courtroom, and not allowed to “check their stories” among themselves.  The fear is that witnesses may be influenced or contaminated from exposure to other witnesses’ beliefs and versions.  The temptation is strong to try and create one coherent story to the jury.  So lawyers will be specifically ordered not to tell their witnesses what other witnesses have said or testified.

Prior bad acts, criminal record, and such are also excluded as prejudicial.  The defendant has the right to be judged based solely on the evidence the state has gathered and can provide in the case at hand.  Repeat offenders cannot be convicted based on the jury deciding he is a dirty rat who should have been locked up a long time ago.  Which is another way of saying that allowing such prior acts is likely to be prejudicial in the eyes of the jury.

Defense attorneys will request that the prosecutor not be allowed to use everyday decision-making analogies as a way to explain what “beyond a reasonable doubt” means as to how the jury will decide on guilt.  Defense attorneys claim that using an everyday decision like crossing a crosswalk to explain what the “beyond a reasonable doubt” standard means “trivializes the gravity of the standard and the jury’s role.”  It could make the jury falsely believe that the state’s burden of proof is easily met, whereas it is an extremely high standard.

Attorneys in drug cases ask that police not be allowed to “speculate” as to whether a substance they found or observed was in fact the drug as charged.  No one can testify along the lines of “it must have been heroin, I just know it”.  The state needs to bring in expert witnesses and forensic evidence along with showing the chain of custody of the drugs from suspect’s possession all the way to the drug lab and testing process.  The officer may of course testify as to observations, but not jump to a conclusion.

If enough of the evidence ends up being excluded, usually due to incorrect procedures, there may not be much of a case.  One of the charges may be dropped, the charges may be reduced, or the case may head to settlement.  It may even be dismissed.  This is where defense lawyers claim that they are upholding fairness and due process by making sure that police investigations must be carried out legally in order to result in a conviction.

The decisions on excluding evidence are not always easy.  Constantly redefining where our rights begin and end is a necessary, if painful, process, that is litigated daily in courtrooms across the country.  Some of it becomes such a fine line as to approach hair splitting.  I am continually impressed by how seriously the judges take their obligation to make sure that each trial is fair and impartial, and by the thoughtful arguments made on both sides.  Because in the end, the right to a fair trial is not just a technicality.  And everyone in the courtroom, ideally, is there to uphold the law.

RESERVING BAIL

When you are arrested, jailed and accused of a crime, your first hearing usually includes setting bail.  The baseline ideal, from the point of view of the defendant, is to be released on your personal recognizance.  This means you may be released without paying any bail money, simply based on your promise to return to all your hearings and follow all the other conditions of your release.  But this is not in your best interest if you have any other holds, because you will stay in jail and not get credit for time served on your new case.

Few people outside the system understand that “credit for time served” only applies if you are “held” on that specific case.  Let’s take an example.  You get arrested for driving with a suspended license (based on unpaid traffic ticket).  Your eager attorney argues for you to be released without paying any bail.  The judge signs a release order.  But your lawyer didn’t check that oops you have an outstanding shoplifting case from years back, .  So while you are “released” on the new case, you will still be held in jail, but you will only get credit on the old case.  When the new case resolves, it will look like you spent zero time in jail.  And any jail days you get will have to be served.

The way defense lawyers get around this, if they are aware of the hold, and almost all of them will check for holds, is to “reserve bail.”   That means bail is not set on the new case, and the person is held in custody, including on the new case.  But if the other holds are later dropped, the person can then argue for release at the later date.  This is efficient for the accused, who can get out at the first opportunity, while maximizing credit for time served.

On the other hand, it can be quite unfair.  A person might have ten cases for ongoing issues and be getting “credit for time served” on all of them at the same time.  As the cases resolve, each prosecutor is writing a document that the accused spent so and so many days in custody on that case, but the days are the same days for all ten cases, so in a sense the accused may get tenfold credit for the time served.  A person with a single charge may spend the same amount of time in jail as a person with ten charges.

This is somewhat simplistic, because of course as the convictions roll in, many systems have a point system, offender score, or sentencing grid that will lead to longer sentences for the later convictions.  For example, the first DUI (driving under the influence) has a mandatory one day in jail while the second DUI has a mandatory 30 days in jail.  There are also a myriad of first time offender programs that allow people a chance to stay out of jail, usually by doing treatment and community service.

For the people in custody, it is very hard to understand the concept that a judge can tell them they are released, and yet they can be held in jail.  The idea that each case is separate and independent, that different cities, counties and governmental agencies might work completely separately, or that what one judge says does not rule out what another judge said is very confusing.  Because in-jail arraignments and bail hearings are in a chaotic and rushed setting, it is rare that the defense attorney has time to fully explain the legal system to the point that the newly arrested person can understand.

I imagine a lot of suspects who are just worried about getting to work before they get fired, or getting home before the babysitter leaves, have a really hard time grasping the concept of reserving bail.  They are standing in front of a judge, wanting to get out of jail, and often no one has really explained that they will not get out of jail no matter what happens at this hearing, so it is best to “reserve bail.”  So when they hear the attorney tell the judge they don’t want to talk about bail at this time, it is quite difficult.

This is one of the many things that in an ideal world, the lawyer would have time to fully explain to the defendant prior to the hearing.  And the defendant would have time to fully process it.  Everyone would understand about the whole concept of conflict of laws, the criminal justice system, the bail bond system and many more things.  But then again, in an ideal world, perhaps there would not be any jails, or defendants, or crime.   This is one of the many cases in which we are called upon to “forgive the world for being the way it is.”  A tall order for some of us idealists.

OFFER OF JUDGMENT

Should attorneys and their clients who go to trial on cases that should have settled be punished? Should attorneys who make a reasonable offer to settle be rewarded with attorney’s fees, if the opposing side refuses the offer? Given that negotiations are considered confidential and not to be used against anyone in trial, how can the court even know what a settlement offer was? There is a Federal Rule of Civil Procedure, Rule 68, that covers this situation.

FRCP Title VIII Rule 68 (d) states: “Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”  It seems many states have a similar rule as well. This is a huge incentive to settle cases without going to trial.

For example, you are suing someone for $50,000. Let’s say they damaged your house when their tree fell on it, and you feel the value is that amount. They offer you $20,000, which is more than your out-of-pocket expenses, but still feels like too little, considering the discomfort, and inconvenience, and your overall desire to punish the neighbor whose tree fell on your house. You can refuse the offer and take it to trial. Up to you.

But if at the end of the trial, your judgment comes back at $20,000 or anything less, the defendant will be allowed, through this rule, to show proof of their Offer of Judgment, and have the judge order you to pay for all the defense attorney’s fees and costs accrued from the moment the offer of judgment was made until the moment the case ends.

A lawyer’s time at say $300 dollars an hour is $12,000 a week. Expert witnesses often take a straight fee in the thousands of dollars to review a case, whether they end up testifying or not. There could be all kinds of other costs and fees from document production to paralegal wages and beyond.  You could end up in the hole, even if you “win” the case.  How much of that risk will you take on in the hopes of getting $50,000 instead of $20,000?

I understand the purpose of this rule – to encourage settlement. To avoid frivolous lawsuits where people with a willing personal injury lawyer (who will only get attorney’s fees if they win your case) have nothing to lose by just taking any old case to trial, regardless of the merits. I know the legal system can be misused to harass people, and cause them to pay to defend themselves on a case without merit.

This rule aside, lawyers are free to demand attorney’s fees in all kinds of situations. But something about this rule seems to me like part of a poker game. Do you fold? Do you raise them? Do you play it out to the end and maybe lose your shirt? Of course, in this scenario, both sides have attorneys, the evidence is on the table, and there should be no hidden cards. But knowing how a jury will rule is not a given. So there is a certain element of gambling involved.

I just know as a plaintiff, I would be more likely to settle for something well below the value of the case, and it would not be based on the relative merits, but on my personality.  I am not a gambler.  I am extremely risk-averse.  I love – love – love the feeling of safety that comes from predictability and stability and “knowing” what is going to happen.  So the fear of losing my shirt – my house – my financial stability – would allow a defendant to essentially bully me into an early settlement for a fraction of what I might get.

I don’t know how many large corporations use this rule as a way to pressure plaintiffs into settling cases.  But I can see how the rule could be used to settle cases short of trial.  And it won’t always be based strictly on the merits of the case.  The so-called justice system has all kinds of pitfalls and factors to juggle in deciding how to go forward with any given case.  How willing the plaintiff is to take on the risk of paying for the attorney who is defending the opposing party, should they lose, is a double-edged factor to throw into the mix.

CRIMINAL MIND

Do you believe that everyone has a criminal mind?  Some religions postulate that we are born sinners, or at least that we are born with the capacity to sin, err and rebel.  People tend to have very strong feelings about criminal behavior.  Some are convinced (and try to convince others) that we need to be tougher on crime.  Others are equally passionate and convinced that the system is so racist and stacked, that we cannot even presume that people in jail have even done anything wrong.  Most of us have a basic slant toward identifying more as a potential perpetrator or more as a potential crime victim.  This tends to vary based on the crime as well.  Some of us can imagine committing a certain crime, but some others.

I personally know a few people who have a knee-jerk “hang ’em high, ask questions later” attitude.  They believe that the world will be safer if “we” are harder on crime.  They wonder how I can stand to hang out with “those losers” and help them.  I used to have longer discussions on these matters, but their opinions turn out to be so visceral that they are not amenable to reason.  So now I stick to the point that the only way someone can be kept incarcerated, if indeed they have committed a crime, is when they get due process.  If they don’t, they have to be released, so we as a society need to follow all our own rules, to keep “bad people” locked up.  This comforts some.  Yet it is almost physically and certainly emotionally painful to them to think about anyone “getting away with it”.

For those who have indisputable facts to bolster their arguments that the US is infamous for incarcerating its populace, more than any other country on earth, and disproportionately incarcerates the poor and minorities, I agree.  That appears to be statistical fact.  But when their solution is to open the prison doors for everyone inside, and start all over from scratch, I see once again how the strength of the emotion leads to blanket solutions, based on who we identify with within this complex system of crime, punishment, rehabilitation and vindication.

What about you?  Are there crimes you can see yourself committing?  Crimes you know you could never commit, but may become the victim of?  Criminal acts that break your heart and make you long for a better world, where such things would be unthinkable?  Crimes that make you feel so protective of the victims, that you would be willing to err on the side of having some innocent people in jail, if it meant less victims overall?  Do you worry about  being arrested for a crime you didn’t commit?  Or are there some crimes, on the other hand, that you think should be legalized, because you believe they are victimless (i.e. you might want to do them with impunity)?  These are not easy questions to consider, and not a very comfortable topic for conversation.

Certainly this topic of what crimes you could see yourself committing and whether you identify more with the victim or the perpetrator is not something interpreters sit around chatting about.  But I know someone who knows someone, who once heard a lover say something in court, and thought, “Hey, I can identify with that guy.  I might actually do that, under certain circumstances.  Yes, it is atavistic.  Of course it is wrong, but somehow I can see how that could happen.  I can imagine how deliciously satisfying it would be to do.”

I have a theory that as soon as you talk about how “that could happen” you are entering into the dark labyrinth of your criminal mind, where “things happen” but no one does them.  The criminal is just as surprised as everyone else that “it happened”.  You take a step back from your own agency, and you are no longer in control of your actions.  Then again, maybe this immaculate control that some of us take pride in is just a facade.  A facade that is destined to shatter if and when we hit those circumstances that break our resolve to live according to our preconceived notions about morality.

This friend of a friend, who shall remain safely blanketed and insulated within several layers of anonymity, was interpreting on a protection order calendar.  And the judge was scolding the responding party quite heavily.  She was telling him that he was very lucky that he hadn’t been charged with a crime.  What he had done amounts to assault, she told him.  That is a crime that can carry up to a year in jail and a $5000 fine!  He is lucky that the woman he bit has chosen not to pursue that aspect of it, and instead simply asks the court to order that he not be allowed to have any contact with her.

Part of the protected party’s statement was read into the record during the hearing.  It turns out these two were secret lovers, and the man believed the woman was about to leave her husband and move in with her.  But at the last moment, she panicked, and told him she just cannot leave.  She realized she loves her husband.  She chooses her husband over him.  But she is willing to go to their hourly no-tell motel for a last quickie, if he so desires, and say goodbye that way.

Oh, god.  That is not what he wants at all.  He wants to throw himself at her feet and beg her, beg her, shake her and convince her, through the strength of his overwhelming feelings, that no one else could possibly love her the way he does.  She is making a huge mistake.  She is throwing both their lives away.  But she is pretty cold about it.  She wants what she wants.  And that seems to be to have her cake, and eat it, too.  She is never going to tell her husband.  She is just going to break up with him and get away with it.   It was just “something that happened” and she doesn’t want any consequences.  So does he want to enjoy one last dance at the hotel or not?

He is devastated, but he cannot seem to say no.  They go, and at the height of their lovemaking, he spontaneously – if it is possible to do something spontaneously with a smidgeon of malice aforethought – nips at her back.  It doesn’t draw blood and it will not leave a scar.  But he hopes it will leave a teeth mark bruise on her shoulder – a place where she could not have bitten herself.  And he feels an unholy glee at the idea of this message from him to the cuckolded husband.  Yes, it is ridiculous.  Yes, it is like peeing on a fire hydrant, and twenty kinds of wrong.  Yet a subtle wave of approval seemed to tremble on the air of the courtroom.  As if many of us could imagine wanting to “out” someone who has betrayed us.

This is probably why the judge took an extra bit of time to warn the person who was going to be subject to the protection order – and the rest of the audience, that this behavior is not acceptable.  Of course you cannot go around biting people to prove a point.  We are no longer toddlers, after all.   Even those of us who are self-aware enough to admit, yes, I could see myself doing that, do not really expect to carry out this luscious revenge in the real world.  The vast majority of us let these fleeting, satisfying thoughts play in the recesses of our daydreaming mind, and then set them aside and rejoin the law-abiding flock of our co-citizens, who on the whole have agreed to uphold the same social contracts as we do.

So once again, how is your criminal mind doing?  Do you identify more as perpetrator or victim?  Which crimes can you imagine committing, under what circumstances?  Would it matter if you knew you would not be caught?  Do you worry more about someone getting away with a crime with impunity, or someone being punished for a crime they didn’t commit?  Food for thought, although you can take it or leave it.  For some of us, such issues make up our daily bread.  And we are forced to chew on it.

RELAPSE

While upholding the law, judges each have their own way of viewing things.  And they are given a certain amount of leeway in deciding what to do with the cases that come before them.  This is what is referred to as their discretion.  It comes strongly into play when they have to decide how to address people who have violated the terms of their probation or diversion programs.  When is it best to send them back to jail?  When should they be given a warning and no punishment?  What about changing the conditions of their release to add something like alcohol monitoring, or another class?  Or giving an in-between punishment like a few days on work crew?

In Drug Court it is common for the judge to acknowledge that “relapse is part of recovery”.  The focus is on reaching a healthy, sustainable sobriety.  The crime is considered a side effect of the addiction.  And the addiction is considered a disease.  So as long as the person admits – ahead of time – that their next UA (urinalysis) will come out positive (for drugs) they will likely get some kind of additional punishment and perhaps additional supervision, but they will usually be allowed to continue avoiding prison as long as they immediately get back into treatment.  The idea is that sobriety is going to be a win-win for society and for the individual, so it is worth “letting them slide” with certain protections in place.  Recovery is a bumpy road.  The judge acknowledges this.

Not all judges agree.  One judge I regularly work with is frankly sick and tired of the recovery model that allows relapse as a normal part of recovery, at least as a free pass on legal consequences.  The following is part of her lecture to a person who relapsed in her court after being granted a “dispo” or a dispositional continuance (which if done successfully ends with a dismissal and no conviction).

“I don’t believe that relapse is part of recovery, and I’ll you why.  Because when you relapse, there IS no recovery!  You are simply using again.  Now, you didn’t have to take a dispo.  You could have just pled guilty, or you could have gone to trial, but you chose to request a very special sentencing alternative – the Dispositional Continuance.  If your lawyer instructed you well, you would know that this is ONLY for people who KNOW they are addicts – who WANT to recover – and who are READY and WILLING to abstain for the rest of their lives.  Who are through with it!  If you are not, please do not come into my courtroom asking for favors while you use.  Not gonna happen.  This isn’t a program set up for you to avoid punishment for your crime.”

“Yes, we know that alcoholism and drug addiction is a disease.  But that isn’t a free pass to keep using and call it ‘part of your recovery’.  No.  If you are getting proper treatment, and you are putting it into practice, you are not going to relapse.  You are through.  So I don’t accept relapse.   Some judges will tell you that if you admit to your relapse ahead of time, before you are found out, and it is early in your process, then you deserve another chance.  I disagree.  Now, don’t get me wrong.  You certainly deserve another chance at TREATMENT for your disease.  But you do NOT merit another chance to avoid the lawful punishment for the crime that you committed.  That is a one-time deal.  As it should be.”

Following people for years through the courts, I see some people who end up in jail or prison.  I see others who graduate clean and sober from a drug diversion program.  And sometimes I see someone in drug court who picks up a new criminal charge while supposedly working the program.  A few have died of an overdose during a relapse.  The hard part for the judge, no matter what their personal philosophy, is how to handle that first relapse.  We cannot know ahead of time who is most deserving of a break.  We cannot know who is going to benefit from a break.  We cannot know whose relapse will be their last, and whose relapse is the first of many, until the addict just gives up for good, and others suffer for it.  In the above case, the “strict” judge did give the addict one last chance, with work crew days and tighter supervision.

When I first walked into a drug diversion court many years ago, I thought it was a little corny that people would clap for the defendants who had reached the next stage of their recovery and their criminal process.  Many years later now, after having viewed so many failures, so many heartbreaking setbacks, long prison sentences and even untimely deaths, I now clap along with the judge, the prosecutor, and the defense attorneys when the audience applauds at these promotions. Why clap for a law-breaking addict?  Because I now have a better sense of what heroic, sustained effort is needed for some people to simply stay sober.  For vulnerable people, it is a lot harder than it looks.  It is easy to fall, and hard to get back up.   So if one more person clapping can encourage one more person to stay sober, I say, clap.