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Peaks and valleys


As is customary when it comes to their ex-girlfriends and the crime of burglary, most men subscribe to the Vampire Theory of Consent:  once permission to enter the premises has been extended by the owner, it means you can enter at any time until the permission is specifically revoked.  And maybe even then.  The aggravated burglary charge was overkill, but it was my sad duty to explain to Eric that if you climb in through somebody's bathroom window, the fact that you paid the cable bill two months earlier is not likely to impress a jury. 

As Kennedy said, it's a system of pleas.  Here's the calculus.  The prosecutor's a decent kid; some prosecutors don't see shades of gray, but he does.  Problem is that his supervisor, who calls the shots, won't come down off a felony two.  The judge is a former prosecutor I've had a lot of dealings with over the years, and I've got a high opinion of him, but I sense that while not all former prosecutors are hard on the stick at sentencing, he's one who will be.  The prosecutor and I go in to have a chat with him and lay it all out.  The judge doesn't like the facts and he doesn't like my client's record, which dates back to 1979, and he tells me that he'd be looking at a "mid-range" sentence on a plea.  On a two to eight, I figured that worked out to four or five.

Now, I can try the case, hoping to persuade the jury that at the time he entered the premises, Eric didn't intend to commit a criminal offense.  Sure, he hit the ex, but that came later, after they started to argue again; when he came through the window, all he wanted to do was talk.  If I hit that, it knocks it all the way down to a felony four straight burglary.  Of course, that's a risky strategy.  Juries don't tend to sympathize with people who beat on women, and I'm surely not going to be able to rely on Eric in getting that story across.  Remember that bit about his record; if he took the stand, the jury wouldn't find out about the stuff more than ten years old, but they would find out about his four most recent convictions, one of them for arson.  (And if he didn't take the stand, there was a chance I wouldn't even get a jury instruction on the lesser offense.)  There wasn't any real worry about consecutive sentences for the misdemeanor domestic violence and the vandalism, but I still figured that a sentence of eight or nine years was the most likely outcome if we went to trial and lost.

On the other hand, I had some decent stuff for mitigation.  I'd talked to Eric and some of his family and friends, and a large part of his problem was the bottle; in fact, he'd been drinking at the time of this incident.  I had him start attending AA classes in the jail, and had the friend round up some letters from people who knew him and could say good things about him.  The victim wasn't looking for blood; her primary concern was that he get treatment.  If I did it right, I figured I could peel a year or two off of that mid-range sentence.  So that's what we decided to do.

The sentencing didn't go perfectly, but it went fairly well.  The prosecutor relayed the victim's sentiments.  Eric had his sign-up sheet for the AA sessions, which showed he attended one about every three days.  Not great, but not bad, either.  The friend came up to speak, and that started out okay, but it got to the point where he would.  Not.  Shut.  Up.  It didn't hurt, it just muted the impact of what he was saying.  I pitched the judge on Eric having come to the realization, however belated, that alcohol was the problem in his life, and his willingness to do something about it.  (The judge properly noted his puzzlement as to why that realization had eluded Eric when he was sentenced to 17 months in prison just four years earlier for dealing dope.)  I suggested that the judge impose a prison sentence, but allow Eric the hope that in a year or two, if he could show the judge that he'd kept his nose clean, done what he needed to do in prison about the alcohol and drugs, and had a stable environment to go back to, the judge would consider granting judicial release.  And Eric did his part, being appropriately and sincerely remorseful.  There was a nice part where he turned to his brother in the back of the courtroom and tearfully told him how sorry he was for all the pain he'd caused his family.

The judge gave him six years.  He said he would consider judicial release, but that's not much a carrot; Eric has to do five before he can even apply for it.

Like every job, there are peaks or valleys in this kind of work.  Every now and then you'll get a not guilty verdict, or you'll work out a really great deal, and that gives you the warm and fuzzies.  And every now and then, you have one where you realize the client couldn't have done much worse without you. 

Oftentimes, that doesn't bother you, because there's nothing you could've done.  As I've said before, our primary job is damage control, and sometimes there's just so much damage you can't do anything about it.  The facts are terrible, the case is a slam dunk, your client's a bad guy, and either you plead out to a deal where he goes away for a long time, or you try the case --basically, a slow-motion guilty plea -- and he goes away for a longer time.

But sometimes, you wonder whether there's something you could've done differently, and those are the ones that keep you up at night.

*   *   *   *   *

For the next week, any sleepless nights I have will be spent in San Diego.  Vacation time.  The Briefcase will be back on March 11.


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