You Do Realize That's It's Real Time They're Doing In There, Don't You?

There's this great scene from the movie . . . And Justice For All where the main character, played by Al Pacino, attacks his colleague for a seeming lack of sympathy for a client who has been sentenced to 3 years in custody.

Arthur - Agge did not have to go to jail! Do you understand? He did not have to go to jail!

Warren - He gets out on probation in 10 months. Listen, that's not all my fault! You don't want those penny ante bullshit cases, I was doing you a favor!

Arthur - A favor? What kind of favor?

Warren - It's nickel and dime Arthur. It's all nickle and dime.

Arthur - Don't you care, Warren? Don't you even care?

Warren - If you care so much why weren't you in the courtroom? You're god damn right I care...but not about them.

Arthur - They're people Warren, you know? They're people, they're just people.

Warren - If he's not in jail this week, he'll be in jail next week. Oh god dammit you know probations....just appeal it!

I try to remind myself of that scene before I go talk to any client about time they may be facing. I try to remind myself that this is time that they may end up doing. I try to remind myself that this is time that they will never get back in their lives. I try to remind myself that while they are doing this time, they will have loved ones who they miss and who are missing them. I try to remind myself of that scene, because I never want to be dismissive of the fact that my clients are real people and some of them may spend real time in custody.

Given the above, I get upset whenever I hear a prosecutor say "Oh, it's just (insert number) (years, months, days, . . . etc.)." Again, this is real time that someone is doing.

The reason this comes up today is because today I received a phone call from the family of a former client. I represented this client on a misdemeanor theft charge. We reached an agreement with the state whereby the case would not be filed if my client jumped through some hoops (i.e., paid restitution, affidavit of non-prosecution from victim, etc.). My client did the things he needed to do and the state agreed not to file the case. Evidently, someone dropped the ball and the state filed the case some months later. My client, who had since moved to Houston, was arrested on a failure to appear because when the state sent him his summons, he did not receive it and he did not appear.

By the time I found out what was going on (my client was in custody in Harris County and I am in South Texas), my client had already been in custody for two days. I contacted the prosecutor who had agreed not to file on the case and he promised to "take care of it." I called the next day to see what the prosecutor had done and he hadn't done a thing. I explained to him that my client was sitting in custody for no reason. The prosecutor's response was "It's just a few days in county. He's still got a good deal even if he doesn't get out for another week."

I understand that it was "just a few days in county." But in those few days, my client's family was worried sick about what was going on. In those few days, my client missed 36 hours of work and 36 hours of pay. In those few days, my client had his liberty restricted, needlessly. And this is time he will never get back.

No, You Cannot "12.44(b)" Your 2nd Degree Felony and Quit Listening to Your Cell Mate.....

Today was a very busy day in court and there weren't many lawyers around.  As such, the judge asked the few of us that were there to take as many court appointments as we could.  I ended up with four.  Three of my guys were in custody and all three, at some point, asked me if they could "12.44(b)" their cases.  12.44(b) is found in the Texas Penal Code and is as follows - 

Sec. 12.44.  REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT.  (a)  A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.

(b)  At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.

I explained to my new clients that since they were charged with 2nd and 3rd degree offenses, they could not "12.44(b)" their cases.  No big deal.  Many clients repeat things they've heard in jail and you just have to explain the law to them if they're mistaken. 

But then I had this client who I was already representing on a Motion to Revoke and we had previously worked out an agreement by which he would spend 30 days in county jail, catch up on some fines and fees he owed as part of his felony probation, and his probation would be continued.  Not a bad deal for him considering he hadn't bothered reporting, paying fees, or doing his community service during the first eight months of his probation.  He basically absconded for eight months and would do 30 days in county as a sanction.  Since my client was going to be in county for 30 days, we arranged for his family to take care of his outstanding balance with the probation department.

Well, before they bring my client over from the jail so that I can confer with him, I run into his father in the hallway and ask him whether the family had paid off the client's balance with probation.  His father says "Well, no.  My son says he's just going to 1145 his case."  So I said, "Do you mean 12.44?" and he says "Yeah.  That's it."

When I finally get the chance to meet with my client, it's in a room with about 15 or 20 other guys who are in custody waiting to meet with their lawyers.  By this point, I'm a little upset because my client's potentially screwed up this deal we had in place.  So I ask him "Did you tell your family not to pay your balance with probation?" and he says, "Yeah, I'm just going to do that thing where I get my offense reduced to a misdemeanor." I tell him, "You are here on an MTR for a 3rd degree felony.  You cannot get that reduced to a misdemeanor."  I was frustrated because now this is the fourth time I have had someone tell me that they are just going to "12.44(b)" their case.  So acting out of frustration and the stupidity that comes along with it, I stand up and look around at all the guys waiting to talk to their attorneys and say, "I don't know who the hell all of you are listening to in here, but you can't all just 12.44(b) your cases.  Talk to your lawyers." 

Looking back, I shouldn't have done that.  I probably embarrassed my client and without a doubt, I looked like an idiot or an ass (or both).  But I'd like to think that maybe I saved at least one other lawyer the hassle and frustration of having to explain to an insistent and doubting client that this particular law doesn't apply to them.  And maybe, this other lawyer had a better day than they otherwise would have because of my frustrations and stupidity.  And if that's the case, well then, I feel better about the whole thing.