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Ethically dishonest

There are a lot of ways to tell when a marriage just isn't working out.  You don't talk anymore, you don't share experiences, there's a lack of intimacy, you grow more distant from each other...

Two felony domestic violence cases in three years is also a pretty good indicator.

And so it was with Mike.  The case I was representing him on was triable:  the incident had begun when his estranged wife came over and yelled at him for calling his own kids, and lasted some five minutes.  The culmination came with the wife, supposedly having been strangled not once but twice, managing to summon the strength to throw a baby stroller through the back window of his car.  Mike had done four and a half months in jail already, and when I worked out a plea to a misdemeanor, Mike jumped all over that.

With a little trepidation, though.  He was in front of a judge who held a very dim view of wife abusers.  Two years earlier, he'd come in front of her on a third degree domestic violence, and for reasons she couldn't possibly explain she put him on, put him on probation, which meant his new case was a probation violation.  The judge might have be able to give him only another month and a half on the latest case, but she had a three-year prison sentence hanging over his head for the earlier one.

And it looked like the Damoclean sword would cut, but I had one card left to play.  Mike had originally been placed on probation for a year, which would have easily expired by the time of this incident, but the judge had extended three times.  Mike had filed a pro se motion arguing that the extensions were improper because the court hadn't held a hearing when it extended them. 

That wasn't going anywhere; there's a boatload of cases saying that the judge doesn't have to hold one.  But I'd dug up a couple of quarter-century old cases from the 8th District saying that the judge had a give a reason for extending it; none of the three journal entries did.  And if the extensions were invalid, then his probation terminated well before this incident, and the judge can't violate him.

So I showed the judge the motion I'd filed that morning, and made my argument, and she looked at me and said, "This man's going to hurt her!  Why are you doing this?"

"Because it's... my job?"  I ventured.  She had a point, of course; if the betting proposition was whether Mike would engage in future abuse, we know where the smart money would be.  But other people get paid to worry about what a defendant does when he gets out of jail or prison.  I'm not one of them.

Still, it got me thinking about the nature of criminal defense work.  You do what you have to do, but that doesn't mean you always have to be proud of what you did.  Many years ago I had a case where my client, Walt, was charged with domestic violence for beating up his girlfriend.  That's an understatement.  The municipal court prosecutor, a very sweet woman we'll call Jeanne, showed me the pictures, and the girlfriend had multiple bruises on her face, and several broken bones.

So why wasn't Walt charged with felonious assault instead?  Aha, he was.  I knew that.  Jeanne didn't, and I didn't tell her.  I wanted to plead Walt to assault, but Jeanne wouldn't agree to it, so we had to try the case.  I chose to try it to the judge, hoping that he might split the baby, and that's what he did:  he found that Walt had assaulted the girlfriend, but that she wasn't a family or household member, so he found Walt guilty of simple assault instead of domestic violence.

Now, here's why I did that.  If you're convicted of a lesser included offense, double jeopardy bars you from being tried for the greater offense.  Domestic violence isn't a lesser included offense of felonious assault, since each has an element that the other doesn't:  you have to prove household member for domestic violence, and you have to prove serious physical harm for felonious assault.  But assault is a lesser included of felonious assault; you prove the latter by proving assault + serious physical harm.  If Walt was convicted of domestic violence, it wouldn't have been a bar to prosecution for felonious assault.  When the judge found Walt guilty of misdemeanor assault, though, he killed the felony case, too.

I figured I saved Walt about three years in prison with that.  Maybe more; those were some nasty pictures.  Still, I felt a little bad about it, mostly because Jeanne caught a lot of flak for what happened.  I didn't have an obligation to conceal the information from Jeanne, but I didn't have a duty to disclose it, either.  So I did my job.

A number of years ago, there was a murder case in California where the defendant had led the police to the body of the victim, a young girl.  The guy's lawyers got all that thrown out because it was the result of an illegal interrogation.  And then the lawyers spent the trial pointing to another person as having been the perpetrator, when they absolutely knew that contention was completely false. 

I'm not sure I could do what that guy's attorneys did.  I'm just not that good of a lawyer.


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