(More short fiction)


From his seat in courtroom 110, the Honorable Quentin Castro felt thousands of tiny fingers around his neck. If he took both hands away from his pen, away from his files, away from his notes and made a show of kneading an imaginary knot, the feeling went away long enough for his pulse to drop down back to normal. This trick had worked for most of the morning, but at 11:35 a.m. Quentin Castro could not pretend anymore.

“Mr. Andrade,” the judge told the defendant who had been rambling about not being able to make his urine test because he lost his bus pass, “let’s just pretend that losing your bus pass is actually a good reason to not give a sample to your probation officer…”

Quentin saw Denise Rothbach, Mr. Andrade’s public defender, raise her hand as though to speak, and then thought better of it.

“…If I were to order you to submit to testing today, right after court, would you test clean or dirty.”

Ms. Rothbach leaned toward her client and said “Don’t lie” just loud enough to be picked up by the microphone at counsel table.

“Dirty, sir.”

Judge Castro rubbed the back of his head with all ten knuckles. “Thank you, sir, for being honest with me. You’ve been coming to reviews in my court for about…four years now? I’m glad you know better than to feed me a line of b.s. Your next review is in 6 weeks, and I want no dirty tests after today’s. Am I clear?”

“Yes your honor” from both lawyer and her client.

Judge Ana Cordova held the door open behind her as she slipped into the back of the courtroom. In that damned pencil skirt.

“Just to let counsel know, I am not feeling very well right now.” Quentin had a knack for professional understatement. “It is very likely that Judge Zuniga will be handling my afternoon calendar in courtroom 92. Thank you.” Quentin left the bench as quickly as would not be noticed and closed the door to his chambers behind him. He heard the social workers and probation officers wish him better from back In the courtroom.

He pulled the chain to the light in his chambers’ tiny washroom. At least I don’t look like I’m dying he thought to himself. Up until 5 days ago, the years had been extraordinarily kind to Quentin Castro. Aging had done little to his looks except to dust his hair with salt-and-pepper. He was no longer the leanest or least sweaty man at his club, but he had always taken care of himself.

“Inoperable,” had been his doctor’s word, and Judge Castro repeated it into the mirror. He reminded himself that there was no way he would actually be feeling the cancer interlacing with his blood vessels, the way his doctor had said it was doing. He had dreamt about feeling it in last night’s nightmare, and now he was feeling it while awake.

I guess it’s time to tell Ana. Fortunately, Quentin decided this just as Ana walked into his chambers without knocking. She stared without blinking into Quentin’s reflection in the mirror. “Is this really the only way to talk to you now? Do I have to chase you down after court like some … groupie?”

Ana squared off with Quentin at the entrance to the washroom. The hurt in her voice, her long dark hair and long dark lashes made Quentin ache. “I….. I have always, always said that you deserved better than me.”

“Don’t you fucking dare with that shit right now Quentin!” Ana knew how to feel without raising her voice. “No calls. No texts. Is your wife making you give her your phone password again? Or are you finally just done with me?”


Ana bore a hole into Quentin’s desk with her eyes. She held back a sob. “You know what the worst thing is?” Her sob broke through. “I actually believed you! I let myself think that you were serious with the stay-together-until-your-kids-go-to-college bullshit.”


Ana’s hands dug into her elbows.

“I might die. I might. Die. Soon.”

Quentin choked on a lump in his throat.

“I might die very soon.”

Ana took 2 steps away, but let Quentin catch up to her. She wrapped her arms around him and cried into his shoulder. He told her about the second opinion and everything that Quentin knew about how long he was going live, which wasn’t much, but that it might not be very long.

“Quentin.” Ana’s voice hardened to ice. “You’ve known this for 5 days?” Ana pulled away and squared her shoulders. “And when were you going to tell me?!” Her jaw tightened. “When would you have told me if I hadn’t come here and chased you down?!”

Quentin felt a squeeze behind his ears. Ana had to go. “Ana. Ana, I have spent the last…five….five days explaining this to my family.”

“Which I’m not.” Ana knew it was true. She had practiced not caring, knowing the day would come when Quentin would chose his family over her. It hurt anyway. Like a hot poker to the heart, it hurt anyway. Ana turned to leave.


Ana stopped. She loved it when he needed her.

“Ana…there is a real chance that sometime soon, I decide I want to live my last days…happy. Happy. With you. Would you take me?”

A fire went out in Ana’s eyes. She knew that she would, and she hated him for it.

“I should tell you something. I’ve always been meaning to tell you, but since you’re dying now, I feel like telling you right now. Remember when you were my supervisor in the Narco unit?” Quentin remembered being a supervising attorney at the district attorney’s office and then wished she would just answer his question. “I used to come to you for advice on my cases and whenever I would want prison terms, you’d always ask me why I hadn’t offered the defendants rehab or drug counseling instead.”

“Yes Ana, I remember…”

“And then I started coming to you with ideas for creative sentences, residential treatment, the whole thing. On my performance eval for that year, you noted that I had shown ‘huge improvements in empathy and compassion.'”

“Ana, please tell me…”

“I never cared. I never ever actually cared. I just wanted to impress you.”

Quentin somehow felt less alone when Ana finally left. 5 minutes until his wife came to take him to his doctor’s appointment.


Madison Castro hated her drug case. The black pleather sunglass case held her vaporizer, her dimebag, her “dry herb” vaporizer attachment mouthpiece, medical marijuana card, and a small metal pick. But inside the case was also her old plastic grinder with the crack down the center, a Men’s Health magazine subscription card folded down the middle into a weed funnel, and small brown flakes of vaporized pot. Her drug case was too dirty. Audrey Hepburn would never have carried this drug case.

Madison stowed the case under her car seat as Quentin left through the staff entrance to the Hall of Justice. Quentin said hi as he slid into the passenger seat. They traded looks that agreed not to try to kiss each other because they probably weren’t going to anyway and so they might as well not agonize over not doing it before not doing it.

And then Madison looked at the rest of him. “You should really consider taking the afternoon off.” “I’m going to try,” Quentin said. Was he shivering? “Judge Zuniga said he might be able to cover the mental health calendar this afternoon.”

Madison tucked a straight blonde lock behind her ear and eyed her husband again, and turned back to the windshield as she pulled out of the court’s parking garage. “You really must not be feeling well,” she said to no one in particular. Quentin waited for Madison to remind him of their daughter’s college tuition, their other daughter’s high school tuition, and the job at her father’s lobbying firm that he had turned down when the county’s presiding judge had asked him to pioneer the county’s first court calendar for mentally ill offenders. Town after town whizzed by on the freeway toward Stanford Hospital, and Madison’s usual barbs never came.

“I will still need you to drop me off at court afterward, in case Judge Zuniga can’t cover my calendar.”

“Okay,” Madison said to no one in particular.

“Thank you for this, Maddie.”

Madison looked at him and turned down the car radio. “Why are you thanking me for this?”

“Not for this.”

“Then for what?”

Silence. Madison realized that she had been biting the inside of her cheek. “I never needed you to thank me, Quentin. Not when I quit my job to freelance part-time and raise our daughters. Not when I spent our nights lying next to you listening to you fret about the sad sacks that you had sent to jail that day.” The leather steering wheel creaked under her grip. “Not when I promised not to tell our family about Ana, or any of the others.”

Quentin rested his head against the window and read the sign – 2 more miles until the exit. “I’ll never be able to repay you for that Maddie.”

“If you somehow make it out of this alive, then I’ll figure out how you can maybe even begin to pay me back for that. Or else…” Madison drew a deep breath. Her mouth twisted. “If the girls can’t have a living father they can still have a dead hero.”

Was that the kindest or the meanest thing she has ever said to me, Quentin asked himself. Madison hit her turn signal to take the exit. Her Mini outmaneuvered an Escalade and snatched a parking spot near the walkway to the hospital. They sat in silence for what felt like minutes until Madison reached into Quentin’s lap and took his hand.

“I told you when we were dating that I didn’t want to be like my friends who dated a person for, like, 6 or 7 years without getting married. Whether we like it or not,” Madison squeezed his hand, “we’re family. We’re still family.” Quentin squeezed back, and Madison opened her car door.

He’s not going to make me care again, Madison promised herself. He’s not going to make me care again and then die on me.


Ana watched the coffee cart guy foaming the milk for her cappuccino. His bulging forearms and ironic waxed moustache made him look like an old-timey circus strong man. His Smiths t-shirt broke the illusion and made him look bored and mopey.

Ana looked around at the streams of people passing the outdoor coffee cart as they came and went from the courthouse. The coffee cart guy lifted his eyes for whoever had just walked up behind her.

“Just coffee,” the woman’s voice said.

“I’m sorry ma’am, but we stop brewing coffee at 10:00.”

Ana stepped out of line to grab a lid for her cup. She looked at the disappointed blonde woman behind her. She was the same woman who smiled beside Quentin in so many of the pictures in his chambers. Ana turned down toward her cup and made a show of trying to get the lid on her drink.

“I can make you an Americano,” the coffee cart guy offered.

Madison’s eyes lingered over the steel tank at the side of the cart as though she could make coffee magically appear inside. “Yeah, that’s fine.”

Ana pretended to check her phone as Madison waited for her drink. Grinds and gurgles came from the espresso machine and a flume of steam shot from the cup as it filled with hot water. Madison passed the cream-and-sugar station without a glance.

What am I doing, Ana asked herself as she matched Madison’s pace toward the nearby parking lot. What do I think I’m going to say? “Excuse me,” Ana called. Madison turned and Ana saw her own face in the reflection of Madison’s sunglasses.

“Oh hell no,” Madison muttered. She gripped her car keys in her free hand and her shoes continued to clack toward the parking lot.

“Wait. Just wait, please. I’m…”

“I know exactly who you are,” Madison spat as she stopped and turned toward Ana, “And I remember telling you never to speak to me again.”

Ana remembered the text message that she had gotten from Quentin’s phone, written by Madison. She took a breath. “You told me never to speak to Quentin again…”

Madison clenched her jaw. “Fucking lawyers. Fine. What exactly do you want from me?”

“You have every right to be hostile…”

“I’m not hostile. I’m honest. People confuse that for being hostile.”

You asked for this, Ana thought, now what are you going to say?

“I just want you to know that…that I’m not going to stand between Quentin and his family.”

Madison’s tongue pressed against the inside of her cheek, and then she sneered. “Oh. Okay. Good.” Pause. “Do you feel better now that you’ve said that?” Ana guessed that there was nothing to say afterall. Madison turned toward the parking lot, and then turned back. “I told Quentin to do one thing for me if he ever started fucking someone else – don’t tell me just because it makes you feel better. Don’t pour your sins out for me because its been weighing on you sooooooo badly and you feel sooooooo guilty. But I guess neither of you can help yourselves, can you?” She tucked a blonde wisp of hair behind her ear. “Let me give you something that I had to learn the hard way. At some point in every relationship, you say things to each other that you can’t take back. Not ever. Ever ever. Because when you try to, you realize that you meant them.” Madison wiped a finger under her sunglasses. “And that’s what hurts. Not the words, but the fact that you meant them. And taking them back doesn’t fix the hurt. Enjoy yourself before that happens. But do it with someone else.”

Ana stood frozen as Madison’s heels stabbed the pavement on the way to the parking lot.


“Are you sure about this Quentin?” Judge Zuniga eyed Quentin warily as Quentin zipped up his judge’s robe.

“I’m sure, Sal.” Maybe I can be good to someone before the day is over. I may not have that many left. “All rise,” the court bailiff called as Quentin walked toward the bench from the back hallway.

Jury Dookie

(A piece of short fiction)

“Oh. My. GAWD!”


For the first time in several hours, Juror Number 2 put down her cell phone. By this point, I had served on this jury with her for 8 days, six hours, and 15 minutes. I and 11 others had spent the past three days around the conference table in the jury deliberation room discussing the case. My seat was directly across from hers. Watching her chest heave against the flimsy straps of her tank top had kept me entertained for…maybe 20 minutes of those three days? Once the thrill faded, I had found myself with plenty of time to notice Juror Number 2’s less redeeming traits. As my fellow jurors traded ideas about the case, her desire to fit in would cool her desire to tap on her phone. She would then put the phone in her lap, in her bra strap (never have I so envied a cell phone!), or maybe in her purse, but her fingers always lingered over the phone, as though they were promising the phone a swift return.


Neela! Her name was Neela!


This time, Neela slammed her phone onto the table, sending a rhinestone flying from the phone’s outer case to skid across the dusty blue nylon carpet. Her arms folded and her hands hid beneath her arms in solidarity with what I knew was her wounded pride.


“I can’t BUH-LEEVE you people!” Thankfully for those of us enjoying our complementary courthouse water, waxed Iron Man Dixie cups do not shatter on high notes. “I have spent a whole goddamn week here, listening to this stupid case, and one of you have the NERVE to talk shit?”


Her eyes darted from face to face, sniffing for the scent of treason. Don’t laugh. Oh God, don’t laugh. Oh no! The corners of my mouth betrayed me. Neela’s eyes narrowed into burning slits before I could remake my Very Serious Juror Face.


“You! You creeper! Where do you get off?!”


Moi? I turned toward our fearless leader, Juror #12, Dr. Important Dentist D.D.S. I opened my eyes wider and tilted a single eyebrow – What is she on about? At least that’s what I imagined my face was saying to the man who had nominated and elected himself jury foreperson before his 11 disinterested subjects.


Dr. Dentist laid 12 index cards on the table. He closed his eyes, whisked himself away to his happy place for just a moment, and leveled his glare at Neela. “Neela,” he tiptoed, “what exactly is bothering you?”
Neela opened her lips, but not her teeth. She could have fried an egg against my forehead with her eyes. “Creeper over there just…just…just cyber-bullied me!”


“What is that? Cyber-bullied?” I had known Juror #3 for 8 days, along with everyone else. During jury selection, the judge had made everyone answer a handful of basic life questions. Juror #3 was named Harvinder, and she was a retired nurse who lived in one of the indistinguishable suburbs that blanketed most of the county. Aside from that, she had a warm smile for anyone and everyone…especially when she wasn’t sure what was going on.


“All right, look,” Dr. Dentist said as he picked up the 12 index cards again and laid them one by one on the table, “We have been here for three days bickering about this case.” Dr. Dentist plucked the two of the index cards that read “not guilty” and held them at eye level. “Two of you are still not convinced that the defendant is guilty, and no one gets to go home until we all agree, one way or the other.”


“Whoa whoa whoa whoa, you need to check yourself right now,” Juror #1 said, folding his arms and spinning his ball cap backwards to make eye contact with Dr. Dentist. “I’m not changing my vote just so you can get back to tightening braces.” I had forgotten Juror #1’s name, and as far as I knew, he owned no clothing other than the Metal Mulisha t-shirt that he had worn to court every day of the trial.


“Well if you had a job yourself, and employees who depend on you, maybe you’d be less keen on coming back Monday. My employees don’t get paid until I get back to ‘tightening braces’ as you put it.” Dr. Dentist put his index finger against the conference table, as though his unpaid employees were under there at that very moment hoping for table scraps to fall.


“If you were that worried, you could just pay them anyway,” Juror #1 said, meeting Dr. Dentist’s eyes while swiveling his chair in semi-circles. Dr. Dentist snorted in disbelief at Juror #1’s suggestion and then turned to me. “Wei-Wei, is it? What exactly are you doing to Neela?”


“Walter. You can call me Walter. I said that before and you can still call me Walter.” The judge had called me Wei-Wei because that’s what my driver’s license and my mom call me. But after 8 days I was still Wei-Wei, the unmarried computer engineering major at Sequoia State University. “And we aren’t even supposed to be Tweeting about the trial until it’s over. I was paying attention when the judge talked.”


“Ah ha,” Neela said, “How did you know it happened on Twitter unless you were the one harassing me?”


“Twitter?” Harvinder the retired nurse smiled at Neela, expectantly.


“Twitter is a website where you can post short little messages. And someone posted this!” She picked up her phone from the table and passed it to Dr. Dentist. Dr. Dentist held the phone like a dead plague rat that might infect his dignity and read:


“I wish the judge would tell the hot kindergarten teacher to stop tweeting about the trial. Her sparkly phone is blocking my view. #nicerack #jurydookie”


Dr. Dentist spoke the word “hashtag” like some nasty swear word he had just learned in a foreign language.


“See? I came up with the hashtag ‘jurydookie’ first! And then I clicked on it to see if anyone else had thought of it and JUST NOW I saw this message with the same hashtag.”


“So…” I began, “not only have you been Tweeting about the trial, even though the judge told us specifically not to do that, you also came up with this hashtag that you thought was sooooooo clever that you clicked on it to see if anyone else started using it?” Of course that was what she had done. I had known she would do that. That was the point of using her own hashtag.


“All right, enough! None of you are even supposed to be posting on the internet until we get this thing done, and that is never going to happen at this rate.” Dr. Dentist handed the phone back to Neela. “Besides, the person who posted this calls himself LOL underscore DONGS, and his profile picture is one of those mustache masks that the Occupy Wall Street people wear. You don’t know it was Mr. Khek.”


Ah. I had been promoted to “Mister Khek.”


“Well who else was it? Her?!” Neela pointed her thumb toward Harvinder. Juror #3’s eyes widened, and turned to the rest of us. “But it was not me!” She pleaded to Neela with her eyes while putting a hand on her shoulder.” It was. Not. Me!”


“But Neela has a point.” Juror #10 was named Yuri, and his last name had lots of consonants put together: a married engineer with two kids. His accent had become much less noticible since the first day of jury selection, when the judge ignored Yuri’s claim that he was not fluent enough in English to sit as a juror. “How did you know that Neela was upset about something that had happened on Twitter before she even said it happened on Twitter?” Juror #10 folded his arms. His belly strained against the buttons of his plaid shirt. His hairless noggin shone in the flurescent light. For 3 days, Juror #10 had not interacted with us for longer than it took to write the word “guilty” on his index card every time Dr. Dentist called for a vote. And now he decides to chime in?


Neela, Harvinder, and 2 other jurors nodded at Yuri and then turned to me. Time to think fast.


“I assumed it was Twitter because clearly no one is taking Instagram photos and only my parents and their friends use Facebook.” Was that too scoffing? Or just enough scoffing to deflect attention away from me?


Either way, I was not convincing enough for Patty Sanchez, Juror #11, who turned one lip up in disgust at me. “That is so incredibly rude. And oppressive to women. This is supposed to be a place where everyone is safe to share their thoughts and you just violated all of the trust in this room.” Neela, Harvinder, Yuri, and the other two nodded. That was 6 of them. Six jurors up in my shit.


“Well if Neela has been Tweeting about this trial, she has already violated the trust in this room.” Maybe Dr. Dentist didn’t care about sexual harassment. Maybe Dr. Dentist was sick of Patty’s constant “not guilty” votes. Either way, he was done. “None of you need to be talking or Tweeting or blogging or anything to anyone else not in this room.”


” ‘None of you need to be talking?’ You sound like a frickin’ middle school yard duty.” Yes! Metal Mulisha was starting a mutiny. Ten jurors smirked and held back laughter. I didn’t bother holding back.


Patty turned to Neela. “One time my friend posted pictures from her trip to Curacao on her Instagram. She was going to go to Aruba but thought it was too touristy. And then that girl disappeared and got killed by that rich boy from Holland. So she went to Curacao instead. Anyway, she posted pictures and some guy made a comment on her bikini and she was all like ‘I bet I know who this is – there’s this guy in my O-chem class who keeps staring at me in discussion section.’ And we both had a class with this guy in the afternoon, so when we all sat down in the lecture hall, she tried to sign into Instagram as him. But she didn’t know the password. So she clicked the button that sends a new password to your phone. And right when she did that, the guy got a text and looked at his phone, and so we knew it was him.”


Fire shone in Neela’s eyes as she picked up her phone. Her nails clacked madly against her phone. Crap. My hand snuck under the table to my phone to disable the text notification settings on my phone before its vibration could give me away.




Too late. Neela’s eyes grew to the size of dinner plates.


“Just a dang minute here,” Dr. Dentist pounced on Patty. “Besides this guy being a jerk,” the doctor’s thumb primed toward Metal Mulisha, “the whole reason we are still here is because you don’t think that the defendant was the one who threatened the victim on Facebook before he got shot dead in his driveway.”


“Because that’s totally different!” Ten jurors scowled at Patty. Neela’s death gaze never left me. I pretended not to notice. “The defendant said that he kept his Facebook open on his computer, and he lived with his brother, and his brother had threatened the victim too. One time my little brother broke into my Facebook and talked all kinds of shit on my friends’ Facebook walls. And I had to call them all and say it wasn’t me, it was my brother, and…”


Dr. Dentist spoke without taking his eyes from the ceiling. “Did your little brother have an ankle monitor that pinged within 10 yards of your computer at the same time as he posted the comments? Because you know that the defendant had one of those. It pinged 10 yards from the scene of murder 15 minutes before the murder.”


The light went on in Patty’s mind. “Oh yeah…..” Silence. Meanwhile, Neela’s eyes had not moved. I remembered a story that my U.S. history teacher had told me about how the CIA killed an Iranian diplomat by seating him behind a tube that shot radiation right into the back of his head.


“Maybe….I guess he did it.”


“OF COURSE he did it,” Neela said to Patty.


“No…the defendant. I guess he did do it after all.”


“Well, this game is no fun if I’m the only one playing it.” Metal Mulisha grabbed a new index card from the stack in the center of the conference table. He scrawled the word “GUILTY” in big spikey letters. The jurors began to shift in their seats as though they had all been defrosted at the same time. The clouds parted from Dr. Dentist’s eyes.


“So…,” Dr. Dentist begin, weighing each of us for signs of dissent, “does that mean we all agree?”


A wave of grateful nods circled the table. Dr. Dentist sprang from his chair and knocked on the door of the deliberation room. The bailiff answered, and Dr. Dentist told him that “his” jury had reached a verdict. No one could care less about me anymore.


We filed into the courtroom and took our seats in the jury box a half-hour later. Although we were about to deep-six his client, I still had to admire the defense lawyer for leaving everyone on the jury while the prosecutor had tried to kick as many of us off as possible. Using chaos to hide a man’s crime was black-belt level trolling. I had much to learn.

Three Years Ago Today…

Happy Anniversary to me! Chasing Truth, Catching Hell turns 3 years old today. Year 3 will begin with a different tone and focus. The theme of the blog won’t change, but the style will be more fiction and less polemic. I’ve enrolled in a creative writing class (online, open to all) from the University of Iowa to expand my skills as a writer. I am now trying my hand at short scenes and stories, some of which I will share in the near future. I have noticed more than one literary-minded person follow Chasing Truth within the past year; I would love to hear your honest feedback on what you read.

Wish me luck,

Norm DeGuerre

The Warrant Exception: A Fourth Amendment Field Report

Most of my cases involve some kind of search. My clients have had their homes raided by squads of police officers sporting surplus military weaponry. Their underwear drawers, pants pockets, and backpacks have been turned inside out. They have been ordered to sit on curbs in handcuffs beside their cars while their neighbors looked on. In the most extreme cases, the long arm of the law has pulled its nitrile gloves tight across the knuckles in its search for contraband.

Given the invasive nature of these searches, should a police officer be able to carry them out whenever he or she wants? Shouldn’t a neutral, detached member of the judiciary take a look at the officer’s’ reasons for wanting to do these things, consider whether those reasons amount to probable cause and sign a warrant stating that the officer’s behavior will pass Constitutional muster? I would only need two hands to count the number of times my clients have seen a warrant before a search, but I would still have fingers to spare.

And yet as a matter of law, any search without a warrant is presumed to be illegal. This rule, along with the rules requiring Miranda warnings and appointed counsel for the accused, came from a bygone era of Supreme Court jurisprudence. In later years, the Rehnquist Court found many of these rules too protective of the accused. Rather than overturning these rules, the High Court decided to puncture them with exceptions that police can rely on to justify their behavior. In most cases, the police succeed because the “exceptions” cover the vast majority of times my clients have been searched. Searches done with a warrant are now the exception, not the rule.

My client (let’s call him “Client”) lived in a duplex in one of those unincorporated areas between good-sized cities; an older residential neighborhood with too many cars parked in the driveway and no sidewalks. Client shared the duplex with his wife, his brother-in-law and his brother-in-law’s indoor marijuana grow, which he tended with help from a friend who lived elsewhere (let’s call him “Parolee”).

One day, Parolee addressed his finished product to the wrong ZIP code and accidentally mailed a big box of marijuana to the other side of the state. Detectives from far away soon began following my client and his family because they lived at the return address on the package. They engineered a “consensual encounter” with Client and Parolee on the sidewalk in front their home just as they were about to unlock the door and go inside. For 15-20 minutes they peppered Parolee with questions to find out whether he lived in the duplex (if he had lived there, the detectives could have searched without a warrant). Parolee, who had accepted a totally voluntary invitation to sit on the curb between two police cars, continued to insist that he did not live there.

So the cops went with their Plan B; they tracked down Client’s wife in the maternity ward of the nearby hospital, waited until after she had given birth, confronted her as she was learning to nurse her infant, and convinced her to sign their consent form. I will point out here that Client and his wife have very limited English skills; I had never spoken with Client without an interpreter. The officers claimed that all of their interactions with Client and his very new family were consensual, and that Client and his postpartum wife could have ended the encounter at any time.

Now if I pretended to be a member of my local bench, I would say that living at the return address on a big box of pot is probable cause to search Client’s home and sign that warrant. If I were the on-call judge, available 24/7 to sign emergency warrants, I might have even signed it outside of business hours.

So why harass a new mother and her newborn baby instead of simply asking a judge for a warrant? If you have given birth, or have been at a birth, you know what a special and vulnerable time it is for the mother. The miracle of life is exhausting, messy, painful, and overwhelming; between hospital gowns and nursing, it leaves little room for modesty. These detectives had chosen to drive hundreds of miles to interfere with something sacred rather than seek a warrant from a judge.

That’s the part that gets me; they didn’t have to, they chose to. Why?

And if cops can bust in on a woman learning to express colostrum, what can’t they do?

Respectfully Submitted,

Norm DeGuerre

A Reluctant Call for Mercy Killing: This Lawyer’s Opinion

The time has come for the criminal defense community to rethink its well-rehearsed response to the following question:

What would happen if every defendant who wanted a trial got one?

Michelle Alexander at the New York Times posed this question in 2012…or more accurately, Ms. Alexander interviewed a former defendant named Susan Burton, and it was Ms. Burton who posed this question. Ms. Burton had served multiple jail terms for drug related offenses. Each time, she got out by accepting the prosecuting attorney’s plea bargain. Each time she got out after serving the sentence she agreed to serve, the state released her back into the under-served, over-policed neighborhood from whence she came. Her status as a convicted felon barred her from job and housing options, and her freedom lasted only as long as it took for the police to find another reason to drag her back in.

Ms. Burton’s story is too common. The criminal court system in the United States jails a larger fraction of its citizens than does any other system in the world. The numbers of imprisoned African American men are the most shocking and shameful; the United States jails more people than were jailed in the Soviet Union during the heyday of Stalinism, and the United States jails a greater percent of its African American men than the percent of Soviet citizens held in the gulag.

Ms. Burton’s question strikes the beast in its one weak spot; the people who promote this mass brutality don’t want it badly enough to pay for it.

Before the federal courts intervened, California’s prisons were stuffed to 175% of their designed capacity. The state later passed several laws designed to reduce the swelling: California’s infamous Three Strikes law now only applies to those whose “third strike” is serious or violent, prisoners can serve their time for property and drug crimes in local jails instead of state prisons, and simple possession of any drug is now a misdemeanor. These reforms came not because California suddenly realized that narcotics had long since won the War on Drugs or that all life was too valuable to take from someone for just any felony; they came because California had neither the money to build more prisons nor the stomach to raise taxes for that purpose..

California’s death penalty will likely share the same fate; Judge Cormac Carney ruled in 2014 that California’s death penalty was unconstitutional because the state did not provide enough funds to hire competent defense counsel who would “exhaust” all of the appellate options for the condemned so that he could be executed. There were no appeals to the inherent worth of every human life, even ones who have taken other lives from us, and California was not overcome with the shame that should come from being among the last regimes in the industrialized world that practices capital punishment. California still wants to kill people, just not enough to pay for the due process that must come beforehand.

At the trial court level, more than 90% of all criminal cases resolve by plea bargain and not by trial. As Ms. Burton pointed out: if every defendant demanded a speedy trial, the courts would collapse under the weight of all those rights happening at once. Cases would be dismissed for lack of court resources and the regime of mass incarceration would become too expensive for the courts to bear. So what would happen if every defendant who wanted a trial received one?

I posed this question on social media (on Twitter @normdeguerreesq): if bringing the system to its knees is in our clients’ best interest, why aren’t we doing it? This got a little bit of attention, but the response makes me think that the question wasn’t interpreted the way I had intended. Mark Draughn at Windy Pundit and Mark Bennett at Defending People wrote answers to a slightly different question: why don’t we just take every case to trial so that the system buckles under the pressure? Both writers responded with the same answer that every young public defender hears from her supervisor when she daydreams aloud about using her massive stack of case files to bring the system to its knees by trying every case.

Both Mr. Draughn and Mr. Bennett seem to interpret my tweets as though I had suggested that every defendant should choose to go to jury trial. Such a tactic would most certainly be unethical if recommended to all defendants regardless of their individual situations. Ethically, a lawyer is bound to pursue the best interests of each individual client and not her clients as a population. There are some philosophical discussions to be had about whether or not the interests of the many would actually benefit the interests of the few, but this is not a conversation for boots-on-the-ground lawyers like myself and it is most certainly not a call to action I advocate. The defendants who will be hurt with a stiffer sentence after trial should be encouraged to plea, as should those who – for whatever reason – are being offered a sweet deal by the DA. I use my experience as a PD to advise my clients whether or not a deal is worth taking.

However, I am not asking whether we should encourage every defendant to go to trial. I am asking, what would happen if every defendant who wants a trial got one? The difference between these two questions is subtle but important.

To answer this question, the lawyer must accept that being a defendant’s attorney entails being his voice of reason behind closed doors and the voice of his client’s best interest in the courtroom. Despite the histories of poor choices that often land a client’s file on our desks, the decision of whether she wants a trial is hers and hers alone, and that choice must be respected so long as the lawyer has shared his honest, candid professional opinion about the merits of any plea deal and the risks of going to trial. If there is a concern regarding client’s competence to stand trial, that decision is referred to medical doctors and judges. So long as my client is competent, as her lawyer, I treat her that way.

Too many lawyers can’t bring themselves to honor a client’s decision with which they disagree. I have heard public defenders and private lawyers yell at their clients in the courthouse hallways and berate them for not accepting their plea bargains. These lawyers win their guilty pleas, but not because the plea bargain was that much better than the likely post-trial sentence and certainly not because the client has finally accepted his lawyer’s wisdom. These clients still want a trial but no longer believe that their lawyers will actually fight for them. It is this situation I am speaking to.

For every client who wants a trial to get one, the defense bar will have to remind themselves that their clients are the ultimate masters of their own fates. The attorneys who fear trial for whatever reason will have to grow a spine and polish their skills or otherwise find a new line of work. The charred and crispy public defenders who have been doing their jobs for too long to try cases will need to step aside, take their pensions, and make room for new blood.

Finally, and most importantly, we must remind ourselves that Constitutional rights have value, and they should not be surrendered unless the accused is being offered something of comparable value. We need to remind ourselves this when we are tempted to tell a client to plea simply because he is guilty. A client’s guilt is largely irrelevant to whether a plea bargain is in his best interest; what matters is whether the state can prove it and whether the proposed plea is lower than the likely post-trial outcome. If the answer to either question is “no,” then the client’s case should be tried.

Frankly, many lawyers need to recalibrate their sense of whether a plea bargain is actually worth taking. Ms. Alexander’s article has a particularly vivid example of a plea bargain that probably looked more attractive than a trial…at first:

Take the case of Erma Faye Stewart, a single African-American mother of two who was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal.

Too many lawyers toss aside their client’s misgivings about their plea bargains. “Yet another example of my client’s bad decision making,” they may tell themselves. These lawyers need to remember that unlike their clients, they themselves have never had to live with the consequences of a plea bargain. Probation is no “bargain” if the client cannot or will not jump through the many hoops that come with it. A plea for a short prison term might end up doubling or tripling the client’s next prison term; lawyers may be selling a life sentence on an installment plan. Millions of defendants and their lawyers continue to cooperate with mass incarceration by surrendering their rights, but this amiable cooperation has lead to record numbers of people serving record numbers of years in prison. This tells me that most defense lawyers have been very, very wrong about whether plea bargains are worth taking.

As Ms. Alexander’s article points out, not every defendant needs to go to trial for sparks and flames to fly from the joints of the mass incarceration machine; I believe that the system is so underfunded that defense lawyers could collapse it simply by providing their clients the information and confidence to make their own informed choice and then honoring that choice. What could possibly be controversial or unethical about that?

Many of my peers continue to wring their hands and fret at the idea of making social change through individual representation. “If the police are running amok and if the laws are unjust, then they must be reformed and rebuilt,” these lawyers might say. These lawyers, like Cicero in the days of the old Roman republic, believe that appeals to mercy, decency, and reason will bring out the best in their fellow citizens; justice and reform are just one long dialogue away. But I believe that every institution works they way it does because someone benefits from the status quo, and that someone is most likely in power and will resist any efforts at change. Stabbing the monster in its one weak spot and starving it of resources remains the best tactic; this is why generations of new public defenders continue to ask, what would happen if every client who wanted a trial got one?

Respectfully Submitted,

Norm DeGuerre

The Thin Blue Curtain

Dozens of cars whooshed over my head every second; I first heard the engine, followed by thunks of axles bumping over seams in the freeway, and then the air as it tried in vain to catch up in their wake. The lamps fifty feet above the cars were the only light sources; only a little of it snuck past the overpass and made the journey down to where I sat, in a police car, beneath the highway. I was left sitting in a memory of light, like the image that remained when you finally turn off an old television that had been on for too long.

This light left too many shadows. The nearby shipping depots and body shops had long since become “mixed use” developments, which meant they were only used for discussion during city council meetings. They loomed like sad bamboo around the Hotel Antillia – squeezing it against the two-lane road that ran along the freeway above.

Officer Timmons turned on the spotlight mounted to the side of his police car as he pulled into the hotel’s horseshoe parking lot and shined it on the single-story rows of hotel rooms ran along either side. Each room had a front door that opened into the attached carport, swallowing the doors and cars underneath in shadow until the spotlight punched through. The spotlight darted from car window, to front door, to the lone window allotted to each room, and then on to the next room.

This was not the first hotel parking lot that we had roamed that evening – we were looking for anyone who had left their room to smoke, or talk to other guests, or sit in their car. Officer Timmons was free to chat with anyone he saw in public, and if that person happened to be high, getting high, holding an open container, or on probation or parole, Officer Timmons would then further intervene into their evening.

“Outstanding.” I heard Officer Timmons as he braked to the right of a red Corolla in one of the hotel’s parking spaces. No need to undo the seatbelt – Officer Timmons had been in and out of his car so often that night he no longer bothered to fasten it. I peered through the passenger window in hopes of seeing what Officer Timmons had spotted in a matter of split-seconds; a woman’s head shot up from the driver’s lap just as the driver tried to sink lower behind the back of his seat.

“Let me guess, it’s not what it looks like,” Officer Timmons said as the driver blinked in confusion at the officer’s flashlight. Both he and his passenger handed over their IDs without being asked. Officer Timmons read each card as the driver spilled the entire saga of how he and his lady friend wound up in that parking lot.

I rolled down my window just a bit, and pressed my ear to the crack.

“You see, officer, I know that this isn’t the right place to be doing this, but she’s married with two kids, and my room wasn’t free because me and two other guys chipped in to pay the $54 it cost to rent a room and they got back early, and there really wasn’t anywhere we could go, and no one was around, and besides, I have every right to be here because it’s a public parking lot.”

“Yes sir, that’s the problem, you’re doing this in a public parking lot,” Officer Timmons said, the threads of his patience holding steadfast.

Meanwhile, the dispatcher chirped over the car radio and into Officer Timmons’ earpiece. No wants, no warrants, and neither party was on probation.

“Alright, I’m going to be back in a half hour to see if you two are still out here. Take what you’re doing inside, or I’ll take you in,” Officer Timmons warned before returning their IDs. “I can’t have you out here making yourselves targets for whoever might want to jack [rob] you while you two are distracted.” He slid back into the police car and continued his inspection of the Antillia parking lot; the two men who had been chatting across the lot through their respective windows had long since closed their curtains.

My night with the Sequoia Meadow Police Department followed much the same pattern. Officer Timmons had no sergeant or commanding officer dictating where he should patrol, and so he spent the time between calls roaming secluded, poorly lit public spaces. We rolled through the Honduran neighborhood to let the local gangs know that the SMPD was out and about. We shined spotlights into empty parking garages and parks that closed to the public at sunset. We visited the boarded-up meth house across from the union hall, whose tenants had scattered after one of them hanged himself inside. We also found the time to swing by the homes in the hills with three-car garages because, according to Officer Timmons, several of the owners had complained that they don’t “feel safe” without a “visible police presence.”

At around 1:00 a.m., Officer Timmons drove toward the entrance to the SMPD’s parking lot in order to drop me off before his lunch break. On one side were the steel skeletons of new, “affordable” $800,000 2-bedroom condos. On the other side, the gray glass façade of a large investment firm; signs and arrows guided drivers to the designated limousine parking. Officer Timmons wished me a good night and dropped me off at my car. He pulled away and went to grab lunch, which at that time of night was going to come from either a convenience store or a drive-through.

I nearly missed my exit home while driving back from Sequoia Meadow; I had gotten lost in thought. In 7 hours, Officer Timmons would finish his shift and begin his hour-long commute to the home where he and his family could actually afford to live on a police officer’s salary. Officer Timmons will have spent the remainder of his shift continuing to roam the semi-secluded public spaces of the city, looking for people who lack the privacy and/or good sense to indulge their vices indoors. If their crimes are serious enough, Officer Timmons will arrest them; otherwise, he will shoo them away back into the shadows for their own safety. This will also save Officer Timmons from having to drive back to Sequoia Meadow on one of his days off to testify in court.

“The system is broken,” Officer Timmons had told me as we filled his tank with gas at the beginning of our ride-along. I had nodded politely, assuming that his reasons for thinking that would be completely opposed to my own. But as the evening unfurled, I learned that our opinions overlapped to a surprising degree. Jails and prisons take first-offenders and hardens them by subjecting them to an environment of constant fear. The defendants who go in hardened become permanently lost. Those who avoid jail are simply ignored like a cigarette butt on the sidewalk; dopers and hookers are cited, released, rearrested when they fail to come to court, and then re-released, and then they go right back to old habits once they serve their time.

Officer Timmons has to figure out whether the psychotic homeless man is off his meds, on the right meds, or on enough meds and if he guesses incorrectly, the doctors release him to go right back to exposing himself before Officer Timmons’ shift ends. Sometimes, Officer Timmons finds a man leaning against the side of a building, too drunk to stand but awake enough to almost answer his questions. This man would be too drunk to safely book into the jail but unless Officer Timmons can prove the man’s identity, he cannot take him to the “drunk tank” to sober up. The last option is to call for first responders. But then Officer Timmons has to decide how urgent the situation is before calling it in; a “Code 1” (lowest priority) is unlikely to get any response at all, while a “Code 3” was reserved for life threatening emergencies.

These stories came back to me during my drive home. Officer Timmons represents the boundary between the have-nots and have-mores. Sequoia Meadow’s criminal class invited police intervention solely because they lacked the private space to commit their crimes away from prying eyes. In a matter of seconds, Officer Timmons must decide whether he has a legal basis for intruding into someone’s evening. Once he does, he then has to balance what is necessary to keep the city looking safe to the well-heeled residents while rationing the few crumbs-worth of public resources at his disposal. He has only three options to choose from; jailing someone temporarily removes their unsightly activities from public view, but often makes a bad person worse before releasing them back into the world. Calling upon other public resources, such as hospitals or firefighters, cost a tremendous amount of time and money. Sadly, the most efficient solution is to shoo the problem back into the shadows so that the citizens of Sequoia Meadow can tell themselves that it isn’t there. Afterward, Officer Timmons leaves the city to return to where he can actually afford to live.

Making people feel safe without making things better: this is what Officer Timmons meant when he said that the “system is broken.” Despite everything I had seen, I never quite appreciated just how bad things really are.

Respectfully Submitted,

Norm DeGuerre

Grandma, Should I Plea? (A Largely True Story)

“I have an idea – humor me on this.”

I would never have imagined saying these words to a client on the eve of trial. We were in court for a last-minute settlement conference. The jury panel would show up the next day. My client was about to make the most important decision of his life.

I showed my client a quarter that I had pulled from my pocket: “Heads you go to trial, tails you take the deal and go home today.”

My client’s grandmother sat in the first row of the courtroom. She clearly wanted to see what I was going to do next and she did not look at all alarmed at the proposition I had just made her grandson. Meanwhile, the district attorney paced in the back of the courtroom with his cell phone against his ear, trying to postpone a fundraiser for his upcoming political campaign.

Before we had come back into the courtroom, while we were in the courtroom’s attached holding cell, my client had asked me if he could ask his grandma her opinion on whether he should take the district attorney’s plea bargain or go to trial. I told him that he could, and I offered to tell the DA to do his campaigning outside the courtroom. “Fuck it, I ain’t got anything to hide. I didn’t do this and he can hear me say it.” I considered that a knowing and intelligent waiver of attorney client privilege.

My client’s resolve liquified – more than a little – after discussing his options with his grandma across the courtroom guard rail.

My client expressly asked me to share my impressions of his case with his grandma, so I gave them to her. She understood that my client was so drunk on the night of the incident that he had no idea that his friend was going to pull a knife, or that he was going to stick it in the chest of his sister’s ex-boyfriend who happened to be at that same party. She knew that he fled the scene only because he was afraid that the other people at the party were going to come after him for what his friend had done, and besides, the stabber was also my client’s ride to the party. She understood that her grandson had not heard his friend call out the name of his gang before sticking his knife between the victim’s ribs.

She also knew what the DA was going to argue: the red belt my client had worn in high school, the picture of him beneath a flag depicting a gang-related symbol that he used for his Tinder profile, and the red shoelaces on his Nike Cortez shoes proved that he and his friend were members of the same semi-organized criminal gang, and that they orchestrated this stabbing specifically to spread fear of their gang. She didn’t need me to tell her the tilted ratio of frightened white people swimming in our local jury pool, or that these same white people might believe the DA’s outlandish theory. If the gang enhancement were to be found true on top of the assault charges, my client would spend the next 24 years in prison. The only bright side would be that at his age, my client would be released by the time he was 42, with not an insignificant amount of life left to live.

I explained to the grandma that my client had one key that would let him go home; if he pled to just one of the several violent felonies he was accused of and admitted that he did it “for the benefit of a criminal street gang,” he would be released that day. The catch was that my client would be on gang probation for 5 years, and that gang P.O.s carried side arms and pat-searched the probationer and anyone in the home whenever they came for their unannounced visits. If they found any reason to violate his probation, he could wind up serving those 24 years anyway.

He was hopelessly torn, so I suggested the coin flip.

I tossed the coin into the air. It spun. I caught it as it fell. I slapped it against the top of my left hand. I failed to notice that the DA had hung up the phone and was no longer talking. I began to lift my fingers, as though I was about to pull away my hand and show the coin face underneath, but I did not pull my hand away.

“Now admit it – there is one side that you want to see more than the other.”

My client pulled in his lower lip, and nodded. “I want a trial,” he said. I kept eye contact with him while putting the quarter back in my pocket.

“You’re not going to show me what it was?” My client asked.

“No. Why does it matter? We were never going to decide this with a coin flip.”

My client sighed, straightened his back, and nodded his head again. His grandmother beamed with pride while her hands still clutched the guard rail in fear. Both thanked me for helping with his decision.

I had gotten the coin flip idea from an old episode of Frasier – I doubt that they would have wanted to know that.

Now, if you readers are wondering what happened in this case, whether he won or lost, I ask you whether that matters, and whether a decision that important should be determined by win or loss.

Respectfully Submitted,