"You Can't Keep a Good Man Down"

You Can't Keep a Good Man Down!

- by Hardy Parkerson, Atty.

      As I sit at counsel table, I begin to write notes to my teenage client who is charged with armed robbery.

    "You have the right to plead guilty and to ask for a pre-sentence investigation.

    But if you plead guilty, you waive all errors (get no appeal).

    Some cases can't be won.

    We should have taken the offer.

    We did not.

    We just have to take our licks.

    At least we tried!

    I did my best to get you off.

    It didn't work.

    At least we tried!

    We need now to decide if we have anything to gain by going to trial.

    Our options are:

    (1) Try the case; get found guilty, sentenced; appeal. We might win the appeal.

    (2) Plead guilty, in which case we have no appeal.

    If you are tried, we probably won't win the appeal, however.

    Few people win appeals.

    Some do.

    There is no doubt about it: we were railroaded; you didn't get your legal rights.

    You were denied your right to a hearing on discovery, a hearing on your Motion for Bill of Particulars, a hearing on your Motion to Quash and one on your Motion to Suppress Evidence.

    To appeal, we must first get convicted and sentenced.

    If you plead guilty, you waive all errors; get no appeal.

    There is a beneficial effect to pleading guilty.

    It's like 'We showed him. He buckled under, admitted his fault/guilt.'

    Psychologists call it catharsis: a coming clean, a facing up to one's acts.

    In other words, a guy who is obviously guilty but who won't admit it, makes them (the Judge) mad.

    But if he 'fesses up,' comes clean, that's
good. 'He's learned his lesson,' they say.

    What we are doing here is personalizing the defendant, letting the Judge watch you until she gets to know you. From time to time, look at her; let her see you, look you in the face! Look her in the face, but not in the eye, lest she know what we are up to.

    For all practical purposes, there is no jury that will find a defendant not guilty, unless the defendant can prove his innocence.

    We screwed up when we did not take the deal the prosecutor offered. We took our chances, played our cards. We had a bad hand. We lost. I'm sorry! I am as sorry as you are!"

    Whereupon the defendant writes "You did your job!" I feel good that he appreciates what I have done. I write him a one-word note: "THANKS!"

    I continue to write notes to him.

    "As a lawyer I try too hard sometimes. Trying too hard sometimes can hurt a lawyer's client. But I can't stand a weak-kneed 'plead-guilty' lawyer, afraid to go to trial, afraid to stand up to the Judge or to the D.A."

    My young client then adds a footnote to my note.

    "You have really helped me and my family out a lot and I am pretty sure they appreciate it as much as I do, Sir!"

    I almost cry as I add my footnote to his: "THANKS!"

    There is an art to picking a jury, but no science. As I voir-dire the jury panel, I try to get each of them to tell me their verdict will be "Not Guilty" if the State fails to prove its case beyond reasonable doubt. Some of them just cannot bring themselves to utter these two words, and these I know I need to get rid of.

    As the jury selection continues, it becomes apparent that there are still more men called to serve on juries than women, and a disproportionate small number of Blacks, as compared with a cross-section of the community.

    The prosecutor is attractive, a knock-out, and banters with the prospective jurors during voir-dire, especially the men. I watch her look them in the eye, and I think "Yeah! Yeah! I know what you're doing. You know how men are. Just the thought that they might, well, you know, let's say, win your approval, is enough to get them on your side."

    Juries are a good thing! Picking juries gives the public a chance to speak out about its frustrations, beliefs, biases, political opinions, pent-up angers, and such. They talk. They're on stage. They get the attention they so much crave, the attention they are denied at home and on the job by spouse, family and fellow-workers. Even the greats of local government have to sit and listen to them; and they do so gladly, and show their appreciation and amusement at the jurors' witty and sometimes serious responses and comments. The jurors entertain the courtroom, the judge, the prosecutor, the audience, as well as their fellow-jurors. Their fellow-jurors laugh; a good time is had by all. It is like a party. It would be nice if we could break out a bottle of wine and have each a glass. Everybody gets his or her turn to say his or her piece, to sound-off, to tell his or her little story, always with lots of local color. Each juror waits with eager anticipation his or her turn to mount the soap-box. No one rushes the jurors. The judge does not cut off the jurors like she cuts off defense counsel. The prosecutor listens like a kid at the feet of his teacher as the teacher tells the afternoon story. All ears are turned towards the speaker. What performances! What soliloquies! What drama! What one-liners! Some of the humor would make Jay Leno envious. How the prosecutor palliates and palpates, massages and manipulates, coos and drools over each potential juror! Everyone gets his or her turn, and each tries to out-do the other. "Do you have anybody in law enforcement?" the prosecutor asks. Each knows some cop personally. Each has experienced some crime or another; if          not directly, at least in his or her family; and each gets his or her turn to tell his or her story about it; to externalize it, along with all of his or her pent-up emotions and frustrations. Of course, none of this would ever make a juror not be fair. Of course not! Sympathy and compassion do not play a role, as each prospective juror will agree; and the school principal declares that he "will presume the defendant guilty, I mean, innocent, until proved guilty beyond a reasonable doubt."

    Now the teacher is on stage once again. Even the librarian makes her debut. While the other jurors were performing, she was rehearsing her lines. She gives her performance. What a tour de force! Certainly she can be fair!

    Only the old Black man is tight-lipped, as always. He has learned to keep quiet in the presence of such authority. He knows the power of the Judge, the prosecutor and even of some lawyers. But Breaux, the Cajun, says his piece, gives his performance. Like the teacher, the librarian and the others, he wouldn't miss it for the world.

    Throughout the morning justice moves.

    We picked the jury; whereupon we threw in the towel, entered a plea of guilty. The Judge sentenced the defendant to the minimum time: five years without benefit of  probation, parole or suspension of sentence. She had no choice. She almost cried as she sentenced him. Talk about personalizing the defendant!

    The day is done. I am now at the coffee shop where I have retreated to lick my wounds. I am down. I write. I write to myself things that are too personal for me to relate here. I call the Judge and prosecutor and court personnel names not fit for print. It's my way of dealing with defeat, externalizing. I'll get over it; I always do. It reminds me of something I once read: "’I am wounded, Father William,’ the young man said, ‘I will lie me down and bleed a while and rise and fight again.’"

    I write to myself: "Don't get me for a criminal lawyer. The judges all hate me, and they'll take it out on you. I never understood how a judge got even with me by taking it out on my client. And instead of the reporter's writing about the real story, that the criminal justice system has broken down, that the criminal courts are so backlogged that hundreds, if not thousands, of felony cases die on the vine for want of prosecution, he'll put another slant on it, deal with personalities, not issues. He'll give me that old Black-lawyer job, the one the Black lawyer gets every time he goes to court and stands up and answers back to the White judges. Oh, yeah! They want him to cow-tow, to hold his hat in his hand and say 'Yazzah, Yazzah, Yo Honnah....' But he won't do it. He stands up like he has a right to be there; like he is as much a part of the court and the legal system as the judge; and they don't like that. Right now I'm so sick of it all! This judge thing has me so down I do not know what to do. I want to curse, but can't. The Judge can say what she pleases; I cannot. The law is too frustrating! Defendants have no rights, none. Judges can run over the law at will. One day I may look back and laugh, but not tonight." Finally, I say to myself, "Face it, Turkey! You lost! You were defeated! The game is over!" I tell myself, "This ain't my first rodeo, and it won't be my last." I kick myself. I tell myself that I have helped many, but this time I messed up my client when I turned down that plea offer. My client was railroaded. I would appeal but I have no confidence in the appeals court either. They just assign those appeals to inexperienced law-clerks who gloss over briefs with a broad brush and write "affirmed", "affirmed", "affirmed", "much discretion", "harmless error", ad infinitum, ad nauseam.  I tell myself, “At least I was in there fighting for my client; there is something to be said for that." 

    I begin to sing to myself, "Life has its little ups and downs...."

    I tell myself that I'll make it through the night O.K. and tomorrow I will have forgotten it all, and I'll be ready to go again.

    As they say, "You can't keep a good man down!"

*