Guilty People

Abbe Smith

• Publisher: Rutgers University Press
• Year: 2020
• ISBN:
  9781978803404
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Criminal defense attorneys protect the innocent and guilty alike, but, the majority of criminal defendants are guilty. This is as it should be in a free society. Yet there are many different types of crime and degrees of guilt, and the defense must navigate through a complex criminal justice system that is not always equipped to recognize nuances.In Guilty People, law professor and longtime criminal defense attorney Abbe Smith gives us a thoughtful and honest look at guilty individuals on trial. Each chapter tells compelling stories about real cases she handled; some of her clients were guilty of only petty crimes and misdemeanors, while others committed offenses as grave as rape and murder. In the process, she answers the question that every defense attorney is routinely asked: How can you represent these people?Smith's answer also tackles seldom-addressed but equally important questions such as: Who are the people filling our nation's jails and prisons? Are they as dangerous and depraved as they are usually portrayed? How did they get caught up in the system? And what happens to them there?This book challenges the assumption that the guilty are a separate species, unworthy of humane treatment. It is dedicated to guilty people—every single one of us.

1

Petty Criminals

Misdemeanors are the great equalizer. People from all walks of life can end up in misdemeanor court for all kinds of reasons.

My first case as a law student in the New York University criminal defense clinic was a misdemeanor: a young man accused of “turnstile jumping” (propelling oneself over a subway turnstile without paying). Although a transit officer witnessed this theft and immediately arrested my client, making it an easy case to prove, I spent hours interviewing my client (who admitted it), investigating the facts (which were exactly what was alleged), and researching the law (which wasn’t helpful). I was relieved when my client’s case was ultimately “adjourned in contemplation of dismissal,” giving him an opportunity to keep his record clean if he stayed out of trouble.

A few years ago, an old childhood friend, whom I’ll call Lisa, was arrested for drunk driving. She had never been arrested before and was embarrassed about it. Her arrest had been videotaped. In the video she comes across as a little loopy, but not so different from her usual personality. When asked to walk a straight line, heel to toe, she complained that she could never do that in ballet class. She protested that she had only had a couple of glasses of wine, refused the breathalyzer, and declined to say anything further. She spent the night in jail.

I happened to have moved to where Lisa was living shortly after the arrest and accompanied her to meetings with her lawyer. The best way to get oriented to practicing law in a new town is to try a case, so I was pleased to help out. It was a triable case: there was no accident or injury and no forensic or medical evidence of intoxication. Plus, Lisa was an appealing defendant. She had no record and a good job. She might have been tired, inattentive, or not the best driver rather than a criminally intoxicated one.

The trial took a couple of hours. Like many misdemeanors, it was a “bench trial” before a judge sitting alone. (Contrary to what many people believe, there is a limited right to a jury in much of the country.) The trial featured the arresting officer’s testimony, the arrest videotape, and Lisa’s testimony. I thought Lisa was credible enough to raise a reasonable doubt. The judge did not. He found her guilty, placed her on probation, suspended her license, and ordered her to attend “drunk-driving school,” a series of classes on the horrors of drunk driving. If she completed probation successfully, she could petition the court to have her record sealed.

The case is memorable only because she was my friend.

A more recent, haunting misdemeanor featured a young man in his early twenties, whom I’ll call Cal. He had no prior record and was accused of physically assaulting the thirteen-year-old son of his considerably older girlfriend. The basic facts of the case were not in dispute. Cal was at his girlfriend’s place babysitting the thirteen-year-old, whom Cal called “Little Man,” and his two younger siblings. Cal often stayed with his girlfriend’s kids when she went out. On this occasion, the girlfriend had been out until late. She came home intoxicated—with her older uncle in tow—and wanted to have sex with Cal. Cal told her he didn’t want to have sex while the uncle was there. The girlfriend tried to cajole him, putting her hands down the front of his pants. He took her hands out. She then began to taunt him. She called him a pussy, a girl. The girlfriend said she would go have sex with Cal’s brother if he wouldn’t have sex with her. She began to strike him with her fists. He did not fight back. When Cal tried to stop her from hitting him by holding her arms, Little Man suddenly jumped on his back and began punching him. Cal grabbed Little Man and threw him onto the couch in a single motion. Little Man then called the police, who arrested Cal and charged him with two counts of simple assault—one for his girlfriend and one for Little Man—and one count of cruelty to children.

Cal was dismayed to be arrested and especially to be accused of being cruel to a child. He loved Little Man. He had been in a relationship with Little Man’s mother since Little Man was six years old. His own mother did not approve of the relationship. She was troubled by the age gap between Cal and the much older woman. Plus, Cal had some learning disabilities that made him seem younger than his age; she feared he could easily be taken advantage of. But she also saw that he was in love.

Cal was a beautiful young man—tall, thin, and espresso-colored, with deep-set, soulful eyes and high cheekbones. He could have been a model. He wore his hair in dreadlocks, sometimes pulled back.

Cal’s student attorney and I did everything we could to get the case removed from the criminal justice system to a “diversionary program” that would allow our client to maintain his clean record. There was no suggestion of any previous domestic violence—no restraining order against Cal for abusing the girlfriend, her kids, or anyone else. The incident was a perfect storm of intoxication and misguided filial loyalty. But the prosecutor was unbudging. He took accusations of child abuse seriously. Cal would have been eligible for first-time-offender domestic violence diversion if he had only assaulted his girlfriend. But an assault on a child made this option inappropriate.

We kept pressing the prosecutor. This was not a case we wanted to try, largely because of the judge before whom Cal was scheduled to appear. This judge was known for being incapable of uttering the words “not guilty,” no matter the evidence. In his courtroom, proof beyond a reasonable doubt was accomplished by virtually any case a prosecutor put on. He often disparaged defense arguments as “unreasonable doubt.” Once a defendant was convicted, especially of an assaultive crime, he or she went to jail. The prosecutor held firm.

We prepared for trial. We investigated the case and got signed statements from the girlfriend, the uncle, and Little Man. Much of what they said corroborated what Cal had told us. The arresting officers wouldn’t talk to us, but their police reports confirmed that neither Little Man nor Cal’s girlfriend was injured. Cal had made statements to the police that both harmed and helped him: he admitted what he had done but said he hadn’t meant to hurt anyone.

The trial lasted two days—long for a bench trial. Little Man, the chief witness for the prosecution, was smart, well-spoken, and fiercely loyal to his mom. He said Cal had no right to put his hands on him or his mom. The police acknowledged that Cal was quiet and cooperative when they arrested him. We called the uncle, the girlfriend, two witnesses who testified to Cal’s good character, a student investigator who testified that Little Man had offered a slightly different account of the incident to us shortly after it had happened than he had given at trial, and Cal.

The girlfriend was a mess. She wept throughout her testimony, saying Cal was a good man who would never hurt a flea. She said she loved her son too and didn’t want to be caught in the middle. It was all her fault, she said; she’d had too much to drink and had behaved badly. In the hall outside of the courtroom, when trial was not in session, she sat on Cal’s lap, her legs and arms wrapped around him, his arms around her. Sometimes they made out in the courthouse hall like a couple of oblivious teenagers.

Cal was an excellent witness even though he was nervous. He described everything that happened honestly and simply. He was incapable of guile and came across that way. He said he threw Little Man off him instinctively, without thinking, because the attack took him by surprise, and had done so in self-defense. He denied striking or doing anything other than trying to restrain his girlfriend when Little Man jumped on him. He said he was sorry about the whole thing, that he would never hurt anyone. He loved his girlfriend and her kids.

We argued hard for an acquittal. The prosecution argued equally hard for a conviction. The judge found Cal guilty of simple assault on Little Man and cruelty to children and not guilty of simple assault on the girlfriend. He seemed to consider this an exceptionally fair verdict. He told Cal there was enough evidence to support a conviction for simple assault on the girlfriend but that he was giving him a break. He then sentenced Cal to two weeks in jail and ordered the marshal to take him into custody.

Cal burst out crying. He begged the judge not to send him to jail. He said he was afraid. He had learned his lesson and would never do anything wrong again. He was weeping hard, his body heaving. His mother and girlfriend were also crying, and so was the student attorney. We tried to get the judge to change his mind. This was not a case that required a jail sentence, we urged. This was not a young man who needed to be put in a cage. A conviction itself was sufficient punishment—a permanent blemish on Cal’s record that would likely prevent him from ever working with kids. Certainly probation with domestic violence classes or community service would suffice. If necessary, the judge could also order a period of electronic monitoring. The judge allowed us to make our arguments and then ordered that Cal be taken away.

I can still hear the sound of his sobs. It is unusual for a twentysomething man to cry like that in court. I found it disturbing. Others seemed disturbed too—the court clerk, the marshal, people in the audience. Even the prosecutor, who had called for jail time, did not seem to derive much satisfaction from the outcome. Only the judge seemed unmoved.

Over the next few days, we visited Cal in jail and petitioned the court to modify the sentence. The client had adjusted to his sentence better than we had. We had mixed feelings about this. Although his ability to adapt to his circumstances made it less painful to see him behind bars, he should not have had to adapt to jail. He did not need to be there. The judge denied our petitions.

Such losses can be difficult, so it’s a good thing we win sometimes.

Diane Brewer (not her real name) was a young mother who had graduated from high school and was planning to enroll in community college. She worked as a cashier at one of the popular Shake Shack restaurants in downtown Washington, DC. Like almost all the cashiers, clerks, and food preparers at this Shake Shack, Ms. Brewer was African American. The restaurant managers—a general manager named Amy Rogers, who oversaw several shops, and the store manager, Alan Thompson—were white. (Again, these are not their real names.) One day, Ms. Brewer got into an altercation with Thompson. He scolded her for not wearing a belt, which was part of the Shake Shack uniform. She replied that she wasn’t the only one not wearing a belt and that general manager Rogers often failed to wear a belt, allowing everyone to see her “butt crack.” This angered Thompson, who was close to Rogers. He told Ms. Brewer she was rude and disrespectful and ordered her to go back to work. Later that day, Ms. Brewer and Thompson quarreled again—this time over Thompson’s delay in changing a large bill for a customer at Ms. Brewer’s register, which had caused a line to gather.

At the end of her shift, Thompson told Ms. Brewer to collect her belongings and meet him in the back office. She did as she was told. When she walked into the office, she found Rogers there as well—not a good sign. Together with Rogers, Thompson fired Ms. Brewer and told her to leave the store immediately. Her final paycheck would be mailed to her. According to the criminal complaint and police reports, Ms. Brewer reacted badly. She grabbed a bunch of wires attached to the office computer system and yanked them out. As she stormed out of the office, she spat at Thompson. She was arrested a couple of days later on a warrant charging her with destruction of property and simple assault.

Ms. Brewer told the postgraduate fellow appointed to represent her that the accusation was essentially true. She felt she had been unfairly fired and lost her temper. She was not proud of her behavior that day. She said there was more to the story than was in the police reports, but she hoped she could admit guilt and be placed into some kind of first-offender program so that she might avoid a criminal record. She wanted her daughter to have a college graduate as a mother, not a criminal.

The fellow tried, but his efforts went nowhere. Ever since the AIDS/HIV epidemic, prosecutors have had a thing about spitting. It’s the misdemeanor version of a mass shooting—or maybe of sexual assault without a condom. Any sort of diversion is out of the question, the prosecutor said.

In a previous negotiation of a spitting case involving a first-time offender—a female graduate student who was being harassed by a man at a bar—a prosecutor declared that she would rather be punched in the face than spat on. Doesn’t it matter where the spit lands, I asked her? I mean, would you rather be punched in the face than have someone spit on your leg? What about at your feet? On your shoe? Being punched in the face is pretty brutal, I offered. She did not reply. The spit in the bar case had allegedly landed on the man’s shoulder. We went to trial, putting forward an argument of self-defense and/or accident (our client hadn’t really meant to spit; she was sputtering in anger because the guy wouldn’t back off)—and our client was found guilty. Judges generally don’t like spitters either.

After some deliberation, we decided to go to trial in the Shake Shack case. It wasn’t an easy decision. Spitting cases are often jail cases. Many judges would be offended by our client’s conduct and identify with the two managers. We could hear a judge saying at sentencing that a manager should be able to fire an employee without the employee damaging the office computer system and spitting at her boss. But we had drawn a good judge—someone who tended to hold the prosecution to its burden of proof no matter the allegation.

A student investigator had managed to get ahold of personnel records that gave us a better picture of what had been going on at that Shake Shack. Thompson could have been a character in the movie Horrible Bosses. He was known for lashing out at employees and having temper tantrums. In the seven months that Thompson and Rogers had run the store together, they had fired over fifteen people. A number of others had quit. This was not a hospitable work environment. Maybe these two hadn’t exactly been well behaved on the day of the incident either. Maybe they weren’t entirely truthful in their account of what happened.

Moreover, Thompson was essentially on probation himself for his unpredictable behavior, which had been documented in a formal reprimand in his personnel file.

At trial, we relied mostly on cross-examination. The fellow working with me conducted a dogged and detailed cross-examination, catching both managers in inconsistencies, contradictions, and evasions. Neither prosecution witness seemed able to tell the truth about anything—that Thompson had gotten physical with Ms. Brewer in the back office before she allegedly did what she did; that he was known for having a temper; that he was on probation; that so many employees had been fired or quit. We called a Shake Shack employee who heard Ms. Brewer shout “Get off of me” while in the back office and who, in his low-key way, offered testimony about Thompson’s “bad character.” We also called an elderly neighbor of Ms. Brewer who testified to her good character. We did not call Ms. Brewer.

By the time both sides rested, we were in surprisingly good shape. The prosecution’s case was in shambles. Although we had intended to argue a combination of self-defense (the spitting occurred after Thompson physically assaulted Ms. Brewer) and accident or lack of criminal intent in destruction of property (she had gotten caught up in the wires in her frenzy to leave the office and hadn’t meant to yank out the cords), we ended up arguing that there was insufficient evidence on which to convict because the prosecution witnes...