Sunday, July 30, 2017

Gray Heads and Glory

As I entered a post office one day, I saw a reflection in the glass of someone walking behind me with a slow, stooped step.  I held the door open and as I looked back, I noticed that he was an old man wearing a U.S. Army uniform and that he was a captain.  I further noticed that he was carrying several bags and, being in no particular hurry, I offered to help carry some of his load.  Of course, he handed me his entire load and began, in the way of old men, to tell me some of his life experiences.

The Captain was born during the Great Depression and he came of age during World War II.  To his immense regret, that war ended before he was old enough to join up.  However, he enlisted as soon as he was of age, and finished training in time for the start of the Korean War.  He came away with a hatred of both MacArthur and communism, a love for military life and Korean culture, and the unshakable belief that he had been fighting against a great evil.  He stayed in the army after hostilities ended, met a pretty Red Cross volunteer while home on leave, and swept her off her feet.   He re-enlisted as soon as Vietnam began to heat up and served several tours of duty.  His health began to give him problems and he was medically discharged before the conclusion of the Vietnam War.  He tried to rejoin for Desert Storm and Desert Shield, but was denied.  He is still angry with Bush '41 for not granting him a waiver to serve in Iraq.     He built a successful business, raised several children to adulthood, and now spends his time doting on his grandchildren and volunteering extensively with veteran support groups.  In fact, I was helping him carry in several dozen support packages he was sending to our men and women serving away from their families.

I asked the Captain about the uniform.  He lit up at the question and explained that his body is failing him.  His doctors have only given him so long to live. There is little they can do to stop or prevent his impending death.  Therefore, he decided that if death was coming for him, he was going to meet it on his terms.  He possesses two uniforms.  After getting his diagnosis, he made the decision to always be wearing one of them because when he goes, he wants to go out wearing the uniform so many of his friends died wearing.  Death is not dignified, but the Captain has chosen to meet it with all the dignity he can muster.

I met with an older attorney recently who had some information I needed for one of my clients.  He was funny and passionate and quickly took a shine to me because I greatly enjoyed listening to his stories from his long legal career.  He told me that after graduating from law school in the 1960s, he walked away from several offers that Memphis big law firms made to him.  He settled near his hometown in Middle Tennessee and hung out a shingle, hoping to correct an apathetic court system that perpetuated injustice and an apathetic society that turned a blind eye to the rampant poverty in its midst.  A few weeks into his practice, an elderly woman came to his office and begged for him to save her from eviction.  She offered him twenty or so dollar bills and he was moved to look over her case.  He realized that she had a rock-solid legal claim and he decided to take it on, but not to take her money.  He won her case and many years later, his client died peacefully in her sleep in that home.  Several years before her death, she came back to see him about a potential medical malpractice case.  He took it on and she received a multi-million dollar settlement.  His cut was so large he could have retired right then and there and still be spending it today.   He did not retire.  He is an old warhorse and still fighting the good fight 50 years later.  He told me that I made the best decision possible in choosing to go solo and he continued to regale me with stories of his fierce, passionate life.  He impressed upon me his belief that I will end up having the same impact that he himself has had.

Both these men have been on my mind a lot since our respective encounters.  The Captain found a cause and an institution he believed in and he served it with all his heart and at the risk of life and limb.  He saw evil in the world and he acted.  In his twilight, he looks back and finds the courage for what lies ahead.  The older attorney forsook a comfortable, lucrative job and blazed his own path.  He saw the injustice and the blanket poverty in his community and he devoted his life and his career to fighting both.  They are both heroes, fighters, idealists, and inspiring.  As their heads have grayed, they have increased in glory.  Every time I face fear or the temptation towards apathy, I think of these two and I remember their pride.   When confronted with their examples, it is impossible to give in to fear or to embrace apathy and it is entirely possible to make the daily choices to live now as they have.  

Saturday, July 1, 2017

Our Finest Hour

Lawyers are an opinionated, argumentative bunch.  There are over a million of us in the United States and there are over a million opinions on the greatest moment in legal history.  Most of them are wrong because the greatest moment was John Adams's passionate defense of the British soldiers who fired on civilians in the Boston Massacre.  As I have now definitively resolved this debate, I would like to tell of my personal greatest moment.

I was appointed by the Court to represent a young man who had a long history of drug use (but no prior drug charges) and whom the state suspected of dealing drugs.  He was finally charged with possessing a large amount of meth with the intent to resell in a school zone (a felony in Tennessee), two counts of possession of drug paraphernalia, and public intoxication (both misdemeanors).  Based upon the amount of the drugs and his proximity to a school, he was looking at seven years in prison. I soon realized that he was entirely innocent of the charges.  The statement provided by the arresting police officer specified my client was passed out drunk in the near vicinity of the alleged drug deal.  The other individuals charged with the crime were friends of his, but there was no evidence that he was aware that anyone had any drugs in their possession, nor that there was a drug deal about to be transacted.  Prosecutors like to charge as many people as they can with a crime and see what sticks.  So, he got lumped in with everyone else.

I was a pretty green attorney at this point, but even I knew we had a pretty good case.  I quickly convinced the DA prosecuting my client that the drug charges would not stick at trial and I was working to convince her that the paraphernalia charges were not worth pursuing.  We were negotiating while in court, and we took a break when the judge adjourned for lunch.  I stepped out and an older woman flagged me down and introduced herself as the grandmother of my client.  She asked what I thought about the case, and I proudly told her of the successful negotiations and of my conclusions that the evidence against my client was rather weak.  I expected relief.  I got tears.  She calmed down after a few minutes, then gently told me that she and her family had been praying for me to lose her grandson's case.  They wanted him in prison because he has been living on the streets constantly hunting for his next fix.  An inmate is not homeless, is not going hungry, and is not living one hit away from a fatal overdose.  They had tried every rehabilitation and treatment option they knew, but he was uninterested and they had been living for the last two years wondering if every phone call and every knock on the door would be announcing news of his death.  If he was in prison, they would have the comfort of knowing he was safe.

After lunch, I had my client moved into a jail visitation room and I crowded into my side along with his grandmother, his mom, his baby mamma, and his toddler.  It was hot, stuffy, and cramped.  His family told him how they would prefer he go to prison than to continue in his current lifestyle.  They all cried.  It was long.  I worked hard to persuade him to plead to the misdemeanor charges and agree to court-ordered rehab.  After a few hours, we had not gotten anywhere.  I finally told him that I would do as he asked and negotiate to get his other charges dropped, but I did say that I thought he was man enough to get clean and I knew he was up to the task.  He broke down and cried.  He said he wanted to get clean, but he did not think he could do it.  Everyone was crying at this point and his family all strongly affirmed their love for him and their commitment to shoulder through this journey along with him.  The DA readily agreed to drop the possession with intent to sell charges and to take his plea on the misdemeanor charges without requiring any further jail time plus mandating that he complete rehab.  I walked out more exhausted than I had ever been after a day's work, but I knew even then that this had been my finest hour as a working man.

I ran into him a while back.  He is working hard and he is clean.  I did not recognize him initially because of how healthy he looked.  His daughter is very blessed to have a champion like him in her life.  I have been thinking about him recently.  I tried to help a recent client get the help he needed, but he did not want to be helped.  He died of a drug overdose the other day.  Another client was incarcerated and went into withdrawal.  She became so despondent that she attempted suicide.  When it comes to dealing with the drug addiction, the stakes are high; they are life and death.  I genuinely believe that the client I helped persuade to go into rehab is going to make it and that his decision to seek help and treatment saved his life.  That was a great moment, and I consider myself privileged to have fought alongside those warriors who loved him so fiercely.  Drugs have a powerful hold on those addicted to them, but love is more powerful still.

Monday, June 19, 2017

Mama Bears

Every criminal defense attorney secretly aspires to be Atticus Finch.  In reality, we spend far more time babysitting our clients to a good plea agreement than we do preparing and waging epic court battles.  The defendants who qualify for a court appointed attorney are all indigent (the legal definition of impoverishment).  As a result, most of them have a criminal history, few of them have any education past high school, and only the smallest minority believe that the court system is going to treat them with fairness and impartiality.  As a result, indigent defendants rarely desire to fight their charges.  In fact, most are anxious to get out of the court room ASAP and are willing to accept any deal that does not include having to serve any further jail time - even when the state's case against them is weak.

I like a fighter.  I like meeting fighters under any circumstance, but I especially like shaking the hand of a client and discovering that he or she is a fighter.  I recently shook the hand of a new client (let's call her "Mama Bear") and instantly pegged her as someone who would be desperate for a plea agreement.  She was small, quiet, mousy, and had the weary look of someone who has been repeatedly beaten down.  In our meeting, she explained how she and her children had gone through hell the past two years.  They suffered an unexpected abandonments, health scares, deaths in the family, unemployment...the works.  In the midst of all this, a woman (the "Wicked Witch") who was in love with Mama Bear's partner began to harass my client.  The Wicked Witch spread vicious gossip about Mama Bear and sent her a multitude of texts and voicemails explaining how she deserved everything that was happening to her.  Mama Bear endured this new affliction quietly, but it all came to a head a few weeks ago when the Wicked Witch and a friend showed up at my client's house.  The Wicked Witch shoved my small, sweet client and, to her shock, found herself physically thrown off the property.  Not content to let Mama Bear have the last word, the Wicked Witch came back for seconds and yelled at her friend to attack one of Mama Bear's teenaged children who had come running out of the house .   Long story short, it was a tough brawl, but my client more than earned her nickname and prevented her child from getting hurt.  The Wicked Witch and her friend high-tailed it out of there, much the worse for the wear.    The Wicked Witch then decided to call the police on Mama Bear.  A deputy came to Mama Bear's house, heard both sides of the story, and decided to charge both women with fighting.  So, to cap off two miserable years of setbacks and betrayal, Mama Bear was slapped in handcuffs and pushed into the back of a police cruiser in front of her terrified children.

By the time I met her, I assumed Mama Bear was ready to throw in the towel after being attacked and arrested.  I read the warrant before meeting with her and I immediately recognized the state had some problems with its case. I expected that I would have to convince her to fight the charges, but she was geared up and ready for battle. All of her children were there, all but two had directly witnessed the fight, and all corroborated her story.  I helpfully showed the assistant district attorney the weaknesses in his case by painting a word picture of all those sweet children going on the stand and telling the world how their gentle and kind mother had been attacked in her own home by a horrible woman who had been harassing their family for the preceding several months.  In the end, the DA dropped the charges.

This case did not take up too much of my time or energies, but it made a world of difference to my client and her family.  For the first time in nearly two years, they had stood their ground and actually won.  They told their story to me, the DA, and the judge and we all listened.  That family came into court with defeated and frustrated postures, but they walked out like the champions they were.  Mama Bear struggles to make ends meet.  It is unlikely that she will be able to buy her children cars, nice clothes, or to send them to college.  However, all through their time in court, she told them she was fighting for them.  When they won, she told them that this was proof that a person standing up for what was right would always accomplish something worthwhile.  It was incredible to behold.  I hope her children remember how she fought for them.  I hope they never forget the courage she modeled for them.  In a world drowning in college graduates and teenagers driving nice cars, we need more courageous and principled fighters.  We need more Mama Bears.

Thursday, May 4, 2017

The Third Man

The first time I defended someone charged with committing a crime against another person, I had the good fortune to be appointed to a young veteran.  He had the misfortune of facing a charge of domestic assault.  A few nights before we met in court, his sister called the police to report that he had attacked her.  The police arrived at the residence and found chaos.  Both my client and his sister were pretty bruised and scratched up and claiming they had been attacked by the other sibling.  The cops were faced with a "he said, she said" situation and two busted up family members, so they placed both under arrest and charged both with fighting.

My client told his arresting officer that he did not lay a hand on his sister, that she had been in a fight the day before, and he thought there were charges pending against her.  To the officer's credit, he checked and could find no record of any such charges.  My client's sister told her arresting officer that her brother was a combat vet, had done multiple tours of duty, had come home with PTSD and was very violent.  She said that she was terrified of him and believed he was going to kill her one day soon.  The officers checked my client's background and confirmed that he had a criminal record full of drunk and disorderly type charges.  As a result, they found the sister's story to be the more plausible account of events and they charged my client with domestic assault.  

When I received my appointment, the DA and the responding officer pulled me aside and told me that this looked like a case where PTSD had played a role and the DA indicated that he would be open to working out a deal that put my client in a hospital for a brief stint instead of putting him in jail.  I thanked him and went to talk to my client.  My client was adamant that he had not attacked his sister and he projected an air of quiet integrity.  So, I believed him and began investigating.  I found out that this guy had voluntarily gone on three tours of duty in Iraq and Afghanistan.  While over there, he had built up a modest collection of awards for bravery and won friends who were all adamant that my client was a defender, not an abuser.  I also spoke with a relative who informed me that my client's sister had gone by different names over the years.  I did a background search using those names and came back with quite a criminal history of starting fights and assaulting people...including an assault charge for a fight that had taken place a few days before my client had supposedly attacked her.  Fortunately, the DA is a professional and dropped the charges against my client.  He also looked at the extensive violent history of my client's sister and he chose to charge her with domestic assault and filing a false police report.  In the end, he worked with her lawyer to get her psychological help instead of jail time because they discovered she suffered from several psychological disorders.  All in all, a great resolution.  

In this situation, the police came in, assessed the situation, spoke with the two people involved, checked both stories, and reached a reasonable conclusion.  The DA checked their work, came to the same conclusion, and humanely offered to help my client instead of seeking to punish him.  The police officers' job was to conduct a thorough investigation and present their conclusions and findings to the DA.  The DA's job was to check their work and ensure that there was enough evidence to support a guilty conviction at trial.  Mine was to come in and advocate for my client.  I worked hard and assembled enough facts and evidence to support his version of the story, successfully argued his case to the DA, and we obtained a just outcome.  This is why lawyers like to talk about an "adversarial system" so much.  My client went through two rounds of impartial investigations and both went against him.  Even he does not fault the officers or the DA for finding against him.  His third round was with an advocate who was partial to him and he won in the third round as a result.  This is more or less the way the justice system is supposed to work - a mixture of impartial fact-finding, partial advocacy, and double- and triple-checking the evidence.  That was a powerful thing to witness firsthand and I learned to always listen to my clients.  They appreciate it and you never know what you're going to discover.  

Wednesday, April 26, 2017

The Taxman Cometh

Taxes were due a week ago and tax day always reminds me of my first advocacy client.  In my second year of law school (making me a 2L in legal jargon), I secured a job in a nonprofit dedicated to serving individuals with disabilities.  My role within this organization was to advocate for clients who were suffering from discrimination for their disabilities.  The executive director had many, many years of experience advocating for disability rights.  She supervised my efforts and I also worked closely with one of my law professors.

My first advocacy client was a sweet, mousy woman who tiptoed through life desperately trying to avoid attracting notice.  She struggled to say 'no' to anyone and that tended to get her into trouble.  Some rather unscrupulous businesses convinced her to sign some contracts that she did not understand and that cost her more money than she could afford.  Due to her ongoing desire to avoid attracting notice, she lived with this situation for quite some time before seeking help.  She has several cognitive and intellectual disabilities, so someone suggested that she participate in a support group our nonprofit organized.  After a few months of coming to our events and forming relationships with my coworkers, she asked for advice on how to handle her situation with the unscrupulous businesses. This is how I was introduced to her.

In Tennessee, all parties to a contract must have the "mental capacity" to enter into a contract.  To oversimplify, this means that everyone must be able to understand that signing a contract has consequences, including the legal requirement to comply with its terms.  After interacting for about five minutes with my client, I realized that she most likely did not have the mental capacity to enter into these contracts.  The individuals who induced her to sign these contracts should have come to this realization as well.  Obviously, they chose to accept her signature.

As this was my first advocacy project, I spent almost 30 hours conducting legal research and another 10 hours writing a letter to these businesses laying out the case that my client did not have the mental capacity to enter into these contracts and proposing that she buy out of the contracts at what we believed was a reasonable price (a similar project would probably take me less than 5 hours total today).  My organization's executive director and my law professor were heavily involved in the letter-writing process and we ended up with a powerful end product.  In the end, none of the businesses chose to pursue the matter and accepted our terms.  We were ecstatic.

Over the next two years, I was privileged to watch that client blossom.   Some of my other coworkers helped her secure employment, set up a strong support network, and to otherwise help her get on her feet.  She was able to find part-time work as a receptionist and to slowly grow a side business.  Shortly before I graduated law school, she came into my office one day to show me her tax return.  She owed an amount less than $20 and she was in tears.  At first, I thought she was upset because she would not be getting a tax refund, but she was in tears because she would be paying into the tax system for the first time in her entire life.  She felt like she was finally contributing something to society and that realization made her literally weep with joy.  "Joy" is not a word I have ever used before in connection with paying taxes.

Advocacy is empowering.  We fought for our client and this communicated to her that we recognized her inherent value.  She was able to score a win and feel like a winner for the first time in a long while.  That feeling spurred her to take on more challenges in her life and to succeed at them.  She turned her life around in a little over a year.  This lesson has paid dividends in my criminal defense practice.  I have represented innocent defendants and I have represented defendants who were very guilty.  Even with the guilty clients, I am always amazed how positively defense attorneys can impact their clients by treating them with respect, with dignity, and by fighting for them.  I have yet to see someone turn their lives around to the extent that my first client did, but I have a long career head of me yet!  

Gray Heads and Glory

As I entered a post office one day, I saw a reflection in the glass of someone walking behind me with a slow, stooped step.  I held the door...