NOT AN EASY CASE TO PLEAD

                 It should have been an easy case to plead.  The state had the defendant cold, at least according to the reports.  He was seen tampering with the mailbox and arrested a short while later with a stolen check in his pocket.  That was one half of a sure plea.  The prosecutor was offering a plea arrangement that would not really worsen the defender's position.  She offered "concurrent time." eighteen months that would be served at the same time as his present sentence, and it would not extend his prison stay.  That should have supplied the other half of an easy plea, but it did not.  The old man closed his ears, literally, by plugging them with his fingers like a stubborn child. 

                 You are my lawyer,” he said.  “I am not taking any plea.  We’re going to trial.  Defend me.”

                 Mr. B was 70 years old, wrinkled and wiry.  He was not a tennis club member or a Caribbean vacationer 70.  He wore his years proudly, and they were right out there for the world to see and read.  He had a warm, nearly toothless smile, which grew broader when he told me where he was serving time – Clinton, the women’s prison that reserved a few spaces for old men, convicted politicians, bad cops and even a former judge.  Yes, Clinton, and the smile slipped into a mischievous, dirty-old-man leer for just a second.

                 After several meetings with Mr. B, I started to get the picture.  We were beyond the bluffing stage.  He did not have to bluster and pretend he would not plead guilty to anything as part of a strategy to get the most favorable plea bargain.  We were at the bottom line and we both knew it.  I realized that he would not plead guilty even if straight probation were offered.  It all boiled down to this: He was old, and prison looked a whole lot better to him than the freedom of homelessness on the Camden streets, which is what he had before his last conviction.  He was homeless if you counted an old man sleeping in the back of his ancient Cadillac as homeless, and I did.  This was not the routine case that it appeared to be on paper.

                 The judge was irate because the defendant was insisting on a jury trial.  He had better things to do with his bench time than to take two days trying this nonsense.  This was New Jersey where judges were not elected like they were across the river in Pennsylvania. Here they were selected by merit.  There was still room for the democratic process in the Garden State’s merit selections, however; the judge’s brother-in-law was county chairman of one of the political parties.  Each year saw him fit the part more as his ample head of blow-dried hair silvered.  His Honor had no time for this crazy old defendant or for the soft-hearted public defender who couldn’t pull a guilty plea out of him.

                 The 20-something assistant prosecutor was not so bad.  She was new, not too many months up from the juvenile unit, where they started new prosecutors.  The teenage homicide boom of the late 1980s had not yet hit, and the juvenile court was usually a relatively calm and innocent place, at least compared with the adult court.  She would get a little crazy in the months ahead, but that is another story.

                 She was a little amused by the whole thing, and the case gave her an opportunity for trial experience in a relatively low-stress setting.  No worries about a real bad guy getting away in this case if she blew it.  I confess that to me the trial was starting to look like a break sandwiched between two serious trials where the defendant would “go away” for a decade, if not two, if convicted.

                 The trial was uneventful, everybody pretty much knew the script.  The arresting officer’s testimony was simple, direct and believable.  It held up fine under my brief cross-examination.  Mr. B insisted on taking the stand in his own defense and all but convicted himself with his own words.  The jury obviously liked the guy, though, and they stayed out for quite a while deliberating, or maybe eating a leisurely lunch.  They finally did the only thing they could do; they came back with a conviction.

                 The judge was in a bad mood at sentencing.  This old guy was charming, but he had screwed up the calendar.  Even worse, the judge couldn’t shake the feeling that the defendant had somehow mocked the system and made the court look a little foolish, petty and harsh.

                “I am sentencing you to eighteen months in the state prison, to be served consecutively to the sentence you are currently serving.”

                 The dreaded word “consecutively” could make a prisoner’s heart sink at sentencing.  It meant he would have to serve every day of his other five-, ten- or 20-year sentence before beginning the new one being imposed.  Here the word fell flat on Mr. B’s ears, but at least he now had them open.  The judge mustered a scowl and went on with,

                 “I am not sure that I’m not doing exactly what you want me to do,” and for once he hit it right.

                 I felt a little sad, not crushed like I would have when I started the PD job, but still sad for Mr. B.  He had family in Camden, but no one showed up during the trial or at sentencing.  They probably had a good reason for staying away.  Who knows, he may have been a lousy father, husband, brother, whatever, but it still seemed a shame to be alone and going off to prison again at an age when he should have been with his family or hanging out with his old buddies, telling stories and spending his Social Security checks.

                The prosecutor came over to me after sentencing and said:

                 “You know it was so cute.  At one point in the trial, he was looking up at you like you were his son, and he was so proud of you.”

                 At about the same time Mr. B approached, shook my hand and patted me on the back, just before the sheriff’s deputies put the handcuffs on him and led him out.  He was happy.  A rare satisfied customer of the public defender.  He’d gotten what he wanted, another eighteen months with the State of New Jersey – another year and half with a roof over his head before he would have to confront the mean streets of Camden.

(This story is part of a collection by Michael J. Carroll, an Attorney with Community Legal Services in Philadelphia, PA.  It was first published in the Winter 1995 Edition of  The Philadelphia Lawyer Magazine. A revised version appeared in "Shark Tales, True and Amazing Stories From America's Lawyers," Liebman; (Simon and Shuster,2000) under the title "A Satisfied Customer.")

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