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.
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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