Home to Roost (Part 1 of a mostly fictional tale)

Tomas clung to his bagel and eyed the Sheriff’s deputies who manned the metal detectors. Not safe yet. They’ll see me. And if they see me, they’ll KNOW. Tomas could not let that happen. He ducked behind the last pillar before the courthouse exit door and waited. The deputies pretended to check people’s briefcases as they slid through the x-ray machine. They took their time taking people’s buckets of metal belongings and plopping them on the other side to await their owners. But Tomas knew better.
“Wand!”
The detector doorway had sniffed metal during an older lawyer’s third attempt to slip through without shrill beeping. A young deputy with a buzzcut pointed to his colleague, whose furious moustache guarded the exit door. Older Lawyer sighed, rolled his eyes, and dutifully took his place alongside the line with arms outstretched as Officer Moustache left his post to grab his metal-detecting wand.
Now!
Tomas shoved his bagel into one of the many pockets of his puffy Raiders jacket and sprinted for the exit door. Warm sunshine greeted him as he stumbled into the plaza out-front. Tomas looked back; no pursuers. I made it! Now they’ll never know! He shuffled to the cross-walk as he passed another older man with suit and briefcase trundling toward the courthouse door with the aid of an aluminum cane. Tomas felt his eyes on him.
“You never saw me, cane mother-fucker!”
The old man winced but moved on as though he had not heard Tomas. That’s right! Keep walking. Eyes are the windows to the soul, Tomas had heard once, and windows just let people in. Now he’ll never know!
Tomas crossed the street and returned to his home: Santa Asphalt City Park, in the heart of the city of Santa Asphalt, California. He passed by the familiar statue of William McKinley holding a top-hat. On that very spot during the election of 1900, McKinley had proclaimed his devotion to the Constitution as a sacred instrument; he had spent the remainder of his campaign warning against debt relief for poor farmers. His most famous accomplishment had been taking an assassin’s bullet and making way for Teddy Roosevelt; bronze replicas of mourning bouquets lay at the statue’s feet to assure people that, at one time, people cared about the loss of their President. A white mop of dried bird droppings hung from the statue’s bald head.
Tomas flopped onto his favorite bench and the birds noticed. They were his birds. His flock. The pigeons came to get their share before the big black crows muscled them out of the way. Tomas smiled and unwrapped the bagel that he had bought with his pocket change in the courthouse café. “Easy there amigos. I’ve got some for all of you.”
A mechanical whiz drew his eyes upward, with the first pinch of bagel crumbs still in his fingers. Above the trees came the eye, held aloft by four spinning propellers. The drone’s metal frame pivoted toward Tomas. The telescope lens wheezed as it stretched toward the bench.
Too late! Now they all see. Now they all know. Tomas leaped from the bench and bounded toward the nearby light-rail train as quickly as his limp allowed. Startled pigeons fluttered away as the braver ones stayed for the bagel dust that had fallen to the ground.
__________________________________________________________________
Oh yeah, baby.
Chip shared the basement of the Santa Asphalt Police Department with 4 other silent drone pilots. White noise from Chip’s headphones blocked the constant buzz and flicker of the fluorescent tube bulbs that ran in rows above their cubicles. Instead of dozens of other Air Force officers fluttering about relaying body counts in hushed tones into telephones, his handful of colleagues sat silently at their desks in their identical SAPD polo shirts patrolling the streets from their computer terminals.
It almost felt as though the war had not come home with him.
Chip had nearly completed his patrol of the streets that bounded the university campus. Science majors, Chip thought as he spied students with backpacks pushing their way through the dormitory dorms with the hustle that comes from being slightly late for an 8:00 lab. The women’s crew team, however, had left for the water 3 hours earlier. Now they swam upstream, returning home from morning practice, their deltoids barely contained by spandex strips.
And so, Chip had begun his final strafe of the dorm’s sixth floor. His screen showed the corner room and right on time, Ponytail peeled off her sweaty uni in preparation for her morning shower.
“Plain view” was the phrase that the District Attorney had sprinkled throughout their training. Anything in plain view was fair game; no effort to hide meant no right to privacy. And any effort to hide was a sign to keep watching until their target’s suspicious activity spilled into the public square.
From 50 feet above the street, the plain view of the 6th floor was fine indeed.
A gasp from the next cube. Chip jammed his joysticks to the left to change the view on his screen to nearby Serra Parkway before removing his headphones and peeking over at his neighbor.
“There are 3 eggs in the nest now!”
Angie clenched her joysticks, her voice giddy. Her drone hovered high above the old mission church on Santa Camilla, which ran parallel to Serra Parkway, lens trained upon the falcon’s nest atop the defunct bell tower. Three orange spackled eggs sat in a web of twigs. Angie’s fingers darted across the keyboard to capture the screenshot. Within moments, Angie opened the SAPD’s Instagram page and began to post the picture to the Department’s 20,000 followers.
Hearts and minds, Chip thought.
WHOOMP went Chip’s tinny computer speakers. Chip spun to see the view on his screen spinning wildly. His terminal blinked its red MALFUNCTION light, as though the situation were not obvious. Chip landed in his chair but hit the edge, causing the chair to roll away from underneath him. The back of his head hit the desk, tipping his enormous cup of coffee onto his side. Twenty steaming ounces of Americano popped the lid and sizzled down Chip’s face. Chip shrieked and flailed with closed eyes to knock the coffee cup to the floor. His hands found the control sticks first and shoved them aside.
Angie stepped on her file cabinet and swung one leg over the cubicle wall. She landed in a kneel, untucked her polo, and dabbed Chip’s face before helping him to his feet.
“Omigod omigod omigod, are you ok?!” Chip whimpered in reply with left hand over left eye. “Can you see?”
Chip gingerly peeled his hand away.
A scream rang through chip’s speakers, its pitch soaring so high that it turned to static. Chip and Angie shared a shriek before Chip ran to the bathroom clutching his face. On Chip’s screen Angie saw the drone’s view, spinning wildly against the dorm window of a terrified, topless co-ed.
Angie wondered for a moment whether this was Chip’s usual patrol route.
Thin snaps announced that one of the propellers had finally splintered; the drone fell and soon all Angie could see was an upside down view of 3 gawking college kids.
Angie walked to the breakroom and plucked her frozen lamb vindaloo from the freezer for Chip’s face. With her free hand, she replied to a text from her mom before looking for Chip. She found him in the men’s room gingerly prying his left eye open. But for the angry red drip pattern, Angie might have thought he was sunburned. Chip turned and gratefully took the instant Indian food and pressed it to his eye.
“I think I’ll be fine,” Chip said before thanking Angie for the cold compress. Angie led Chip back to his cube with cold dew dripping down his neck. He soured looking at his screen. “I’d better call Timmons.”
__________________________________________________________________

The time had come for Officer Timmons to pounce, but his foot had fallen asleep.
At 9:30, Officer Timmons had strolled into the lobby of the EZ-8 Motel with an extra coffee and croissant for Harpreet, the motel clerk. Harpreet offered his guest sign-in sheet, and Officer Timmons ran his finger down the list looking for familiar names while listening to how Harpreet’s kids were doing in school.
Timmons’ finger paused at the name Jorge Castaneda. Timmons knew Jorge. Jorge had just gotten off parole; Timmons had learned this the last time that he tried to search Jorge during a traffic stop. Timmons also knew that Jorge lived with his mom, which meant that he was probably up to no good at the EZ-8. Timmons had spent a half-hour in his squad car waiting for Jorge to leave Room 106 and return into plain view.
At around 8:05, the door to Room 206 opened, and Jorge Castaneda emerged shirtless, wrapped in a hotel sheet to smoke a cigarette. Timmons threw the car door open only to have his right leg buckle. He thumped it against the ground until the blood returned with the pins and needles of sensation.
And then his cell phone rang.
Jorge turned and saw Officer Timmons stomping and fumbling for his phone among his many uniform pockets. “Fuck you, Timmons,” Jorge called. A dragon tattoo coiled around his forearm, its fanged mouth open across the back of his hand, flames licking their way to the tip of Jorge’s fully-extended middle finger. “Come back with a warrant!” Officer Timmons mashed the screen on his phone as Jorge tossed his cigarette over the second-floor handrail and returned to his room.
“What?!” Timmons barked into his phone. It was Chip. His drone crashed. Timmons hung up and returned to his car.
The EZ-8 was close to the university campus; Harpreet advertised discounts for students and their families in town for graduation, but none had ever accepted the offer. Timmons turned onto Serra Parkway and passed the infamous pedestrian corridor that divided two competing movie theaters, between them the pedestal for a commissioned statue of an Aztec god that was blocked as an “ethno-centric waste of public funds.” Blocked, that is, after the pedestal had been built.
Crystal and opiates had become the drugs of choice for Santa Asphalt’s addicts, but a devoted following for crack-cocaine lingered around the downtown area. Many of its users have regular routes: a government office, a liquor store, a bench, a court date, a squad car. The empty pedestal sat at the juncture of several routes, and passers-by shared knowing glances and made swift trades.
Timmons thought back to four years earlier, when he had just been assigned to the M.E.R.G.E. unit. Municipal Engagement…something something or another. His first assignment was “recon” strolling Santa Asphalt’s semi-occupied downtown in plain clothes, getting to know the local fauna. Timmons had not had one meaningful conversation with anyone for the first 6 weeks of his patrolling. Timmons carried a Vitamin Water in a brown paper bag and sat next to a transient named Thomas on a bench in Santa Asphalt City Park. He listed to Thomas’ aches, pains, and religious convictions, and told Thomas that “we need to look after our people out here.”
Thomas snorted. His finger pointed to each of the pockets on Timmons’ pants and counted.
“You’ve got 8 fucking pockets. Eight fucking pockets on those pants. Only cops think they need to carry all their shit on them all the time!” Thomas raised an aluminum can. “No disrespect, Officer.”
He had ordered the pants online from a “tactical undercover” cop supply store. His Sergeant had gotten him a 20% discount.
Timmons stopped reminiscing, turned right, and then U-ed into a red zone near the dorm’s back entrance. Four students stood around the drone as it wheezed angrily against the sidewalk, the remaining two propellers scraping the ground. Nine months earlier, Chip and his colleagues had joined the department as civilian pilots for the Department’s new camera robots. M.E.R.G.E. used them the way that the team had used rookies; mapping the routes of the Department’s repeat customers between arrests and looking for patterns.
Timmons pressed his boot down on the Department’s hope for a bold new policing strategy and used his key to detach its battery. He stuffed the drone’s heart into one of his pockets and turned to the students. He pointed. “Put those cameras down, right now, all of you!”
Two students stowed their phones in their front hoodie pockets. A third held steady, his phone upright, fingers laced through the brass knuckles of a novelty phone case. Each finger snaked through a hole to the back of the phone, with each finger emblazoned with a letter: P A I N. Timmons aimed his finger while his left hand flipped down his lapel flap over his badge number.
“I said put the phone away!”
Still filming.
“It’s a public street, Officer. What have you got to hide?”
“Hey!” Timmons barked as he curled his bicep and pointed again. “I’m here to recover damaged police property, and now you’re delaying me, by being a smartass, and by showing a deadly weapon to me. Now put it away before you delay and obstruct me any further!”
Still filming.
“Well then stop delaying and pick up your drone, Officer,” the Third chortled as his fingers stretched across the screen to zoom the view. Timmons’ Krav Maga teacher had once disabled a Palestinian package courier who tried to cross a checkpoint while holding a boxcutter. Timmons remembered the lesson and seized the student’s wrist, pulled him close; he then pinched the student’s phone arm above the elbow between forearm and bicep. And now one quick twist, his teacher had said. Timmons refrained, but plucked the student’s phone from his flailing fingers and sent it skittering across the sidewalk. He released the student’s elbow, reached back, and clutched the student’s hoodie while sweeping his leg behind the student’s calf. The student clung to Timmons’ wrist to avoid being dropped to the pavement.
“Stop resisting!” Timmons yelled with one final shove. The student abruptly met the sidewalk, followed by Timmons. Timmons rolled the student around clicked his handcuffs around his wrists.
“What’s your name, kid?”
“Trevor,” the student wheezed.
“Trevor, you are under arrest for resisting arrest.”
“The fuck?!”
“PC 148. Do some homework and write me an essay on it.”
High above, Angie’s drone whirled while Angie and Chip shared her monitor in the Department’s basement.
“Jeez, what did he do,” Angie asked. From that height, the drone’s microphone did not catch anyone’s words. Chip snickered in anticipation of his own quip. “When we find out, you should add it to the Insta blotter.” Angie glared but turned back to avoid Chip’s face. “Maybe not,” Chip said, “‘Emo kid fails the attitude test’ isn’t worth a post.” Chip peered into the screen. In the distance, above the horizon of Serra Parkway, a lone crow. Not moving. In mid-air. Chip gingerly opened his burned eyelid and looked again. The crow hadn’t moved. And it looked bigger than before.
It was flying straight toward the drone.
Below, Timmons sat Trevor down and left him to study the curb through his hair. He turned to the remaining students, their hands empty of anything but compliance. “Now, did any of you happen to see what happened to our drone before it crashed?”
A woman with a high ponytail hesitated before raising her hand, as though her professor had asked her a difficult question.
“Your name, miss?”
“Tasha.”
“What did you see, Tasha?”
“I…I was getting ready to shower before class when it slammed into my window,” Tasha said as she pointed six stories up to a web of cracked glass. Timmons squinted as sun bounced from the window down to his eyes.
Timmons nuzzled the radio clipped to his shoulder. “Hey Angie, can you get an eye up there?”
“The best view’s right there in front of you, Timmy.” Angie shoved Chip on the burnt side of his face and snatched back the microphone. She let her scowl linger as Chip cursed and rolled the cold beads from her Coke can across his forehead. As it was, Chip was about 5, maybe 6 weeks from a tense meeting with HR, and Angie made a mental note to write this down for when they started asking her questions.
“Disregard, Timmons. I’ll be there soon.”
“I’m used to disregarding Chip, Angie,” Timmons replied while watching the approach of Angie’s drone.
On the other side of the dorm high-rise, the big black crow dipped below the drone’s flightpath, but swooped up from underneath, talons first, and seized the drone by one of its propeller arms. The crow sank, but flapped until it flipped the drone upside down, with the crow perched on top.
From the SAPD basement, Angie double-mashed the buttons that told the drone to somersault mid-air.
The crow clung to the drone, and the two adversaries twirled like two spinning children holding hands. They twirled toward Tasha’s window, and the crow’s head hit the window with a sickening crunch; the bird plummeted to the sidewalk below as the drone righted itself and resumed a wobbly hover above the sidewalk. Timmons had not noticed the dozen-or-so crows and the handful of pigeons perched upon the dorm roof until they took flight and dove downward. Four crows seized a propeller apiece, leaving only the birds’ wings to slow its descent to the street below.
Tasha shrieked. The crows cawed with contempt as the biggest one parked atop the drone and pecked at the drone’s lidless, high-definition eye. The pigeons kept their distance, but puffed their chest feathers, spread their wings, and danced around the metal carcass. Timmons swung his arm to his left hip and doused the flock with pepper spray.
All eyes fell upon the writhing mass of damp feathers as it squawked in pain. Camera lenses emerged from dorm windows, parked cars, and taco truck customers. And above these, unnoticed and unheeded by the river of humans that spawned to their classes and jobs, dozens of crows, pigeons, rock doves and blue jays turned and tried to pierce Timmons with their eyes.
When that failed, they tried their beaks.
Caws and squawks rose from the trees and rooftops and powerlines and descended in fury.
“Get to my car!” Timmons grabbed Tasha by her shoulder and pushed her into the backseat cage. Timmons then turned and hoisted the captive Trevor and lowered him headfirst into the seat next to Tasha. Timmons scrambled around to the driver’s side door and slammed the door just as the flock descended. After a few manic pecks at the windshield and windows, they decided en masse to perch and wait on the hood, wipers, and side mirrors.
“Fucking Hell, you lunatic,” Trevor spat through metal webbing, “why’d you go and do that?!”
“How was I supposed to know that every fucking bird was going to try and murder us?!”
“Murder you,” Tasha said. “You’re the one that pissed them off!” Tasha’s eyes darted across the aluminum crisscross and tried the door handle, which did not open from the inside. “And why are we in here?! Why did you trap us in here with you?!”
Trevor crinkled his nose. “And why does it stink like bleach?”
Clorox wipes, to be exact. The plastic seat bench had no upholstery, which made for easy removal of…anything that suspects left behind.
“You are SAFE in here with me,” Timmons barked. He turned to the windshield, and then to the sidewalk. All the eyes watched, daring them to move. Timmons unhooked the radio mic from the center console.
“384 to station!”
__________________________________________________________________
Arianna Allende, Chief animal control officer for the city of Santa Asphalt, had never seen an honest-to-God arsenal. And she had never suspected that one lay in the old microchip plant that the Santa Asphalt Police Department had purchased 10 years prior after a quiet, unanimous vote by the city council to approve the funding. Her uniformed guide plunked the code into the keypad that tickled the lattice of belts and chains in just the right way to lift the ponderous metal door, and Ari saw the tools that a city needed to repel an invading army. Armored vehicles with treads lined the sealed doors that, at one time, probably received and unloaded freight. She might have mistaken them for small tanks but for the hydraulic pistons of massive battering rams in lieu of mounted guns. Old shipping containers had been repurposed as storage closets: for body armor, riot shields, bludgeons, batons, collapsible batons, and staves with openings on the bottom for power supplies and twin metal prongs on the tip. Ari winced as though stung by something. Another container had bins of “less than lethal” ammunition: beanbags, rubber shotgun slugs, and the like. One bin had a warning about the risks of phosphorus exposure.
Ari made a mental note to Google that later when she saw the Lieutenant approach, tablet computer in hand, seeming to speak aloud to nobody: her shoulders squared, her hair pulled tight across her skull and bound into a bun that bristled with bobby pins. Her boots squeaked across the floor; Ari glanced down at the brown clay that had dried on her hiking boots during yesterday’s walk around the reservoir and glanced backward to see if she had tracked any of it across the floor. Ari turned forward again just as the Lieutenant clicked the button on the Bluetooth in her ear and shot out her hand.
“Carla Escher.”
“Ari Allende. Nice to finally meet you in person.”
“You too. Let’s talk and walk; our officer and two civilians have been waiting and we’re ready to move.”
“We’re…moving?” Ari trotted alongside Lt. Escher as they approached a comparatively normal looking parking lot of police vehicles beyond the loading bay doors. “I was hoping we’d have a chance to talk before anyone does anything.”
“I don’t know what there is to talk about,” Lt. Escher said as she turned toward a pair of unmarked, black SUVs, flanked by four police officers in tactical vests and helmets. “I have an officer in danger from…” she paused because what she had to say sounded silly in her head, “…angry wildlife. Aside from that, some very expensive police equipment has been targeted by these animals for violent attack.” Escher gestured toward the black cars. “And we have the tools to deal with it right this moment, which is exactly when we need to be dealing with it.”
Carla finally observed the equipment that the officers were loading into the SUVs. Several large canisters with tail fins. Ari wondered. Rockets? A large metal tripod and a small crate of accompanying cables and switch boxes. A long metal tube that unscrewed for easy storage. Ari imagined what they might look like assembled, and news clips about mortar fire in distant warzones replayed in her mind. And finally, what looked like an oversized radar gun that Ari could only imagine being used to issue speeding tickets to a rampaging triceratops.
“With all due respect, Lieutenant,” Ari said, “Animal control is my department’s jurisdiction, and whatever happened to your flying robots, my job is to make sure that…conflicts between humans and animals are handled humanely.”
Escher opened the rear passenger door to the right SUV. “Did you bring your car here?”
“No. I took an Uber.”
“Then let us give you a ride. I’ll explain on the way.”
The rear gates closed, stuffed with gear, and one of the officers removed his helmet and climbed into the driver’s seat. Once they had been chauffeured past the chain-link gate, Lt. Escher woke up her tablet from the nap it had been taking inside its boxy carbon-fiber shell case. Even her computer has a bulletproof vest? “Let me show you what we have in mind.”
Ari held the tablet, and a video began to play. The screen filled with the torso of a man wearing a camo polo shirt whose cure for baldness had been shaving the entire surface area of his vast, shapeless head.
“Hello, and congratulations on your purchase of the Omni Corps Crab Cage 2XE, one of our most innovative rapid-delivery systems for non-lethal, temporary imprisonment. In this video, we will demonstrate the core functionalities of the Crab Cage 2XE, and guide you…”
Lt. Escher’s finger crossed into Ari’s lap and began sliding across the video progress bar on the bottom to move the video forward. “He goes on like that for a while,” Escher explained. She stopped once the screen displayed an animated man with no facial features amid beige buildings…one of which had the unmistakable silhouette of a minaret. An unmarked pick-up truck barreled toward the man; in the truck bed was, presumably, a “bomb.” It looked more like a giant black ball with a lit fuse sticking in the top.
“Is that Wiley Bin Coyote,” Ari chuckled. Lt. Escher missed the reference and scrunched her face instead.
The video continued speaking.
“The radar array on the 2XE can detect single or multiple targets, from the size of small animals to large vehicles, and accurately predict their trajectory. Once the target, or targets, reach a distance pre-determined by the user, the patented Omni Corps cage missile launches…”
At this point, the video’s hero covered the ears he didn’t have as the rocket left the tube, attached to the tripod. The rocket soared and then split, sending a bevy of spheres in all directions that fell to the ground around the truck, dragging with them a massive web.
“…and a flexible cage of tempered carbon fiber descends upon your enemy, rendering them immobile. Hostile vehicles will find a nasty surprise if they try to continue their attack.” At this point the truck dragged the patented Omni Corps carbon crab net with it only a handful of feet before its tires flared into blossoms of rubber. “The webbing features a series of barbs that are harmless to targets that have the good sense to remain motionless once trapped; however, you will find them capable of shredding most car tires with contemptuous ease.”
Escher closed the video just as the darker-skinned figure in the video found himself surrounded by faceless men with assault rifles.
“Barbs?!”
“They probably won’t hurt the birds,” Escher explained, “they’re mostly at the base of the net so that they pop tires as soon as someone tries to drive over them.”
“Is this…really necessary? My department has people and equipment for dealing with birds. Nothing…flashy, like this, but this is well within our capabilities.”
“I’m sure you do, Ms. Allende,” Escher said, “this isn’t about your department or what it can or can’t do.” Their car had just pulled into the parking lot of the main SAPD station downtown. “But every year we get more of this military surplus equipment because we tell the city we need it, and if we don’t use it, we don’t get to keep our budget for next fiscal year. One bureaucrat to another, you understand?”
Escher tried the door handle. The driver left and walked around to open the door. “I forget these things don’t open from the inside,” Escher said. The door opened and both women slid across the seat to stand in the parking lot. “Here’s your stop. You’ll watch the whole operation from the drone command center in the basement. Go in the lobby and say that you’re there to see Angie. I told them to expect you.” Ari met Escher’s hand for a farewell shake. They agreed that it was nice to meet each other, and Escher returned to the car before Ari could protest that she had not been invited to see the action personally.
Ari had plenty of practice asserting herself in workplaces. But apparently, this was a battlefield.
__________________________________________________________________
“Look alive, Timmy! Help is on the way!”
Minutes of radio silence had felt much longer. Timmons patted himself, found an empty pocket, and slipped his phone into it. He peered into the side mirror as Trevor twisted and pressed his face against the rear window. Three crows appeared upside down from the car roof and squawked in disapproval.
A thin mechanical wheeze grew louder. The birds on Timmons’ roof craned their necks around just as another SAPD drone dipped low for a fly-by that mussed the feathers on top of the birds heads.
From below the SAPD headquarters, Ari scolded Chip. “Watch where you’re aiming that thing!”
Chip kept his eyes on the three monitors that he and Angie had set up at his command station, giving him a panoramic view of his flight path. “Those little bastards took out half our drones.” Chip turned then turned the burnt half of his face toward Ari in hopes of making her uncomfortable. “Blue robots matter, you know.”
“Then maybe don’t crash it into them before leading them to the trap site,” Angie snapped back. Ari left Chip to stand behind Angie, who herself had a triple-screen array that showed the view from her drone, far above the fray.
The flock took flight en masse to chase the interloper. Timmons turned the ignition, hit the lights and sirens, and gave chase before realizing that the green and white puddles of chunky bird guano blocked his view of traffic. Timmons pulled the lever to release a spray of washer fluid, but the wipers smeared it into a sickening mess of suds that was no easier to see through. But Timmons didn’t brake. The mess cleared just enough for Timmons to see the traffic signal turn red 50 feet ahead. Timmons gunned his engine and narrowly missed a Prius trying to complete its left turn. Trevor veered into Tasha, and Tasha shoved him back onto his side.
The windshield cleared enough for Timmons to see the swarm in hot pursuit of the drone as it weaved under lampposts and light-rail cables. The drone turned north onto Santa Camilla and the birds followed. Angie kept a safe distance. Timmons did not; lunchtime traffic on Santa Camilla could not pull to the right quickly enough, causing Timmons to lean into oncoming traffic in order to keep pace. It its haste to get right, one car hopped the curb and came to rest wedged in the doorway of the Old Mission Church. The hinges of the old doors groaned and popped in an instant. High above, the bell tower sighed with the slightest resonant tone.
Ten blocks ahead, Angie could see a police roadblock. Ari peered over Angie’s shoulder and saw the silhouette of the Lieutenant’s cage launcher, primed for what might have been its first use in an American city.
“Is that…” Angie turned the drone’s camera upward. “No way…” As Angie watched, a voice played inside her mind. A voice that had lulled her boyfriend to sleep many a weeknight as they cuddled together on the couch of their apartment watching nature shows: the kindly, sonorous voice of Sir David Attenbourough.
The Peregrine Falcon is among Nature’s most thrilling predators. From above Chip’s drone, the crescent wings of Santa Asphalt’s resident mommy falcon folded inward, and the falcon began to dive. The falcon’s prey rarely thinks to look for attacks from above, and this agile hunter can spot a vulnerable target from up to two kilometers away.

“Chip! You’ve got a bogie above you!”
Ari looked over the cubicle at Chip. The police roadblock raced toward him as Santa Asphalt’s newest condo developments towered on either side.
Chip was humming the Star Wars theme.
The falcon’s signature hunting maneuver is the stoop. The stoop is among the most breathtaking displays of brinksmanship in the natural world.
“Chip!”
During the stoop, the falcon can reach speeds as high as 200 kilometers per hour.
At the end of Santa Camilla, Escher’s team trained the mobile radar canon at the pursuing flock. The 2XE’s cage missile twisted automatically on its tripod to match the birds’ flight path.
Just before impact, the falcon tucks in its head, and delivers a tremendous blow of force into its prey.
Angie gasped as the falcon slammed into Chip’s drone, severing one of its propeller arms and sending it skidding across the empty lanes of Santa Camilla.
If the first impact fails to break the hollow bones of the falcon’s prey, the sudden impact with the earth will often finish the job.
“Mother fuck!” Chip howled.
The remaining birds scattered in all directions. Timmons’ police cruiser squashed what life remained in Chip’s drone and careened toward the roadblock. Escher’s team checked the radar screen, and gaped as the Crab Cage 2XE automatically selected its new target.
The 2XE launched its payload. As promised, the missile’s hull split midair and its patented mobile imprisonment system descended upon Timmons’ police cruiser. Timmons had no time to brake before his tires exploded. The stench of hot rubber flooded the passenger cabin as the police cruiser came to rest. Timmons gawked through his driver’s side window. Through the gray carbon webbing, Timmons made out dozens of construction workers on the open third floor of what would be Santa Asphalt’s newest condominium development, training their phone cameras on the fiasco that had unfolded beneath them.
“Well…that was something to see,” Angie said.
“Maybe we’ve seen too much,” Ari replied.
Several blocks away, at Santa Asphalt City Park, Tomas emerged from a light-rail train car. He had to. He had bought a round trip ticket. And only the benches at City Park had not been fitted with the small metal rails every 18 inches to keep transients from napping. Tomas kept his eyes to the sky as he trudged to the nearest bench. As he plopped down, a small gathering of birds fluttered down from the trees in expectation. Tomas looked up one last time. Clear skies. He removed a bag of Doritos from his bag, crumpled three chips in his fist, and sprinkled them across the ground.
“We’re safe this time, amigos. We need to look after our own out here.”

The Fall of Judge Persky: A Cautionary Tale

Today, voters in Santa Clara County will vote to recall Judge Aaron Persky. I predict that he will be recalled despite his cautious efforts to rehabilitate convicted sex offender Brock Turner precisely because of his unwillingness to use California’s dangerously bloated prison system as a remedy for sexual assault, and because his ouster will be expedient for the political establishment of which he probably considers himself a part.

This tale has four key actors: Emily Doe, Brock Turner, Judge Persky, and Stanford professor Michele Dauber.

I. The People v. Brock Turner

On January 18, 2015, “Emily Doe” and her sister attended a party at the Kappa Alpha fraternity house on the Stanford University campus. Both the victim and her sister consumed hard alcohol before and during the party. Outside the fraternity house, Ms. Doe and her sister met a group of male students. One of these students was Brock Turner, a 19-year-old freshman admitted to Stanford on a swimming scholarship. Turner had made aggressive overtures to several women at the party, and attempted to kiss Ms. Doe’s sister while outside the frat house. Ms. Doe’s sister left the scene to help a friend of hers who had drank too much alcohol at the same party.

At approximately 1:00 a.m., two graduate students cycled past the Kappa Alpha house and saw Emily Doe lying unconscious and motionless behind a dumpster. They also spotted Turner thrusting his hips on top of her. The students – Peter Lars Jonsson and Carl-Fredrick Arendt – called for Turner to stop. Turner stopped and fled; Jonnson and Arendt gave chase and held Turner on the ground while other students found Emily Doe and called the police.

Emily Doe was found unconscious, her underwear removed and her dress pulled up to the waist. Police took her to Valley Medical Center, where she regained consciousness at approximately 4:00 a.m. Two nurses performed a forensic examination of the victim’s body, finding “penetrative trauma” to the victim’s genitals and abrasions and erythema on various places on her body. A woman’s blood was also found under Turner’s fingernails.

Judge Aaron Persky presided over Brock Turner’s trial in the Palo Alto branch of the Santa Clara County Superior Court. Turner’s trial began on March 14, 2016. On March 30, the jury unanimously found Turner guilty of assault with intent to commit rape and digital penetration of an unconscious person.

II. Turner’s Sentence Goes “Viral”

Prior to Turner’s sentencing, Santa Clara County’s Adult Probation Department prepared a sentencing memorandum for Judge Persky’s consideration – as it does in every felony case. As required by law, Deputy Probation Officer Monica Lassetre interviewed both Brock Turner and Emily Doe.

Turner’s statement to Probation revealed flashes of genuine remorse. He stated:

“Having imposed suffering on someone else and causing someone else pain – I mean, I can barely live with myself. I can’t even get out of bed in the morning. I think about it every second of every day. Her having to go through the justice system because of my actions just…it’s unforgivable.”

However, Turner also attempted to blame “campus drinking culture and the sexual promiscuity that goes along with that” for his actions rather than placing the responsibility upon himself not to sexually assault an unconscious person. Turner went on to say that if Judge Persky were to grant him probation supervision instead of a state prison sentence, he would comply with all the terms and conditions that would apply, including sex offender treatment and registering his address as required by law of all convicted sex offenders.

Emily Doe also gave a statement to probation on what she felt would be an appropriate sentence for Turner. In her statement, she stressed the pain of having to testify at Turner’s trial. “I still feel a lot of anger because of what he put me through at trial…He attacked my personal life in whatever way possible and in the end, it didn’t work.” However, the victim also expressed skepticism as to what good, if any, would come from sentencing Turner to prison:

“I don’t feel like I won anything…I want him to know it hurt me, but I don’t want his life to be over. I want him to be punished, but as a human, I just want him to get better. I don’t want him to feel like his life is over and I don’t want him to rot away in jail; he doesn’t need to be behind bars.”

Across California, judges routinely rely upon such sentencing memorandums and often adopt their recommendations in their entirety. At the conclusion of her report, Ms. Lassetre cited Turner’s lack of prior criminal record, strong family support, and low probability of re-offending as a legal basis to grant Turner 3 years of probation supervision and impose a moderate county jail term – in lieu of a longer period in state prison – as a condition of his probation.

However, very little about Turner’s actual sentencing hearing was “routine.” In stark contrast to her earlier statement to Ms. Lassetre, the victim impact statement that Emily Doe read in court was more than 7,000 words. Emily began by recounting the horrors of waking up in the hospital, covered in dirt and pine needles, after having lost any memory of the past few hours. She described the awful experience of having to learn the details of her own assault from news reports. Emily then blasted Turner for claiming, during his trial testimony, that he believed Emily to be a conscious, willing, consenting participant in her assault behind a dumpster.

Most of Emily’s ire, however, was focused upon Turner’s lack of contrition and having to go through the process of testifying at Turner’s trial. Emily Doe claimed that Turner’s attorney had “pummeled” her with “narrowed, pointed questions that dissected my personal life, love life, past life, family life, inane questions, accumulating trivial details to try and find an excuse for this guy who had me half naked before even bothering to ask for my name.”

Although Turner’s trial had already gathered substantial attention from local news media by this point, Turner, Judge Persky, and Emily Doe attracted national attention when Buzzfeed published Emily Doe’s statement within hours of the sentencing hearing. The campaign to recall Judge Persky began almost immediately after Persky followed the probation department’s recommendation and sentenced Turner to 6 months in county jail as a condition of his 3 years of probation supervision. In the days that followed, Emily Doe’s statement was republished on countless websites and read aloud, in its entirety, on numerous news programs and by elected representatives.

III. The Role of Professor Michele Dauber

The effort to recall Judge Persky cannot be understood without accounting for the role of Professor Michele Dauber, the Chair of the Recall Persky campaign and its most prolific spokesperson. Ms. Dauber teaches at Stanford Law School, despite never having practiced law as an attorney (though she holds a doctorate in sociology). She and her husband, Ken Dauber, an engineer at Google, made their first foray into local politics in 2011. Mr. Dauber won a seat on the local school board by agitating for reforms in the wake of a rash of teen suicides; the couple founded a non-profit called We Can Do Better Palo Alto to push for these same reforms. An avid supporter of Hillary Clinton’s bid for the presidency, both she and Judge Persky attended the same Democratic Party fundraisers.

However, one of Professor Dauber’s chief preoccupations has been eroding the due process protections given to Stanford students accused of “sexual assault” in Title IX hearings. Professor Dauber has publicly leveled two main complaints. First, Professor Dauber believes that Stanford’s definition of “sexual assault” – an offense whose penalty is expulsion – is too narrow. Sexual assault, according to Professor Dauber, should include more than forcible penetration and penetration of an incapacitated person. Sex with an intoxicated person, sexual battery (non-consensual touching of the breasts or buttocks), and sex without affirmative consent would also fall under Professor Dauber’s definition of “assault” and would warrant expulsion. Second, Professor Dauber opposes requiring a unanimous vote among hearing officers to sustain findings of sexual assault. Professor Dauber has publicly described herself as a “family friend” of Emily Doe, Brock Turner’s victim. Her interest in the Brock Turner case blossomed into a signature gathering effort toward Judge Persky’s recall within weeks of Turner’s sentencing.

Throughout the recall campaign, Professor Dauber has taken it upon herself to act as Emily Doe’s public voice. Having previously relied on The Guardian and other news outlets to take her grievances with Stanford Title IX procedures beyond the Stanford administration, Ms. Dauber plied her media savvy to submit Emily Doe’s victim impact statement to Buzzfeed and other media outlets. Emily Doe’s statement, as previously mentioned, echos many of Professor Dauber’s grievances about having to submit claims of sexual assault to cross-examination. In her written statement to Glamour magazine – in response to being named their Woman of the Year, Emily Doe shared an almost verbatim affection for journalist Ashleigh Banfield as Professor Dauber expressed in her 2016 interview with Democracy Now. When Stanford chose to convert the site of Emily Doe’s attack into a “scenic spot” with a memorial plaque, Stanford proposed the following quotes from Emily Doe’s famous letter:

 
“I’m right here, I’m okay, everything’s okay, I’m right here.”

“You are beautiful, you are to be valued, respected, undeniably, every minute of every day, you are powerful and nobody can take that away from you.”

“On nights when you feel alone, I am with you. When people doubt you or dismiss you, I am with you. I fought every day for you. So never stop fighting, I believe you.”

Emily Doe’s “representatives,” including her lawyer, rejected these and proposed an alternative quote that a Stanford counselor feared would be triggering for sexual assault survivors. Professor Dauber demonstrated her familiarity with these discussions by confirming to media outlets that Emily Doe had decided to not allow any quote at all to be used. At nearly every turn, Professor Dauber has exerted ownership of Emily Doe’s words.

IV. Silicon Valley Democrats Exploit “Me Too”

The Recall Persky campaign has vigorously exploited the Me Too movement and channeled it toward Judge Persky’s recall. Me Too sprang from the revelations of movie mogul Harvey Weinstein’s decades’ worth of sexual harassment and assault of Hollywood actresses. These allegations lead to a host of others leveled at various public figures, including former NBC Today host Matt Lauer, former Minnesota senator Al Franken, comedian Louis C.K., actor Kevin Spacey, and former CBS This Morning host Charlie Rose. The hashtag #metoo was popularized by actress Alyssa Milano, and since then thousands of women have shared their stories of sexual harassment and assault on social media. However, no activist within the movement has highlighted the plights of the millions of women who work minimum wage jobs in hotels, restaurants, or retail outlets; several actors and actresses have toppled looming media figures with their stories, but little has been said or done by this movement in places where most women actually work.
In her 2016 interview with Democracy Now, Michele Dauber proudly declared that Emily Doe’s victim impact statement was a “harbinger” of the Me Too movement. Recall Persky rode this momentum to collect over $1,200,000 in donations; many of these donations have been made in amounts of $1000 by residents of the affluent alcoves of the San Francisco peninsula and Marin County.

The local and national Democratic Party leadership has seen Professor Dauber’s war chest and has lined up at the proverbial trough. Senator Kirstin Gillibrand of New York – considered by many to be a front-runner in the coming 2020 presidential primaries – has endorsed the Recall Persky campaign, along with more than four dozen national, state, and county level Democratic lawmakers. Silicon Valley’s labor aristocracy – SEIU Local 521 and the South Bay Labor Council – have also endorsed the campaign and have fully adopted the same tactics as the Recall Persky campaign in their own election mailers by smearing its disfavored candidates with sexual harassment allegations, rather than touting the importance of unions to working class well-being and contrasting the working class’ interests with those of right-wing candidates (as one might think a labor union would do).

V. An Uninspiring Opposition

Pre-election polls suggest that the recall campaign enjoys a tremendous lead going into election day.

A major reason for this has been the speed and skill with which the Recall Persky campaign has skewed and distorted Judge Persky’s record. The Recall Persky campaign has combed through the thousands of cases that Judge Persky has handled as a Superior Court judge, found 6 that could serve as fodder for campaign mailers and talking points, and distorted them to sound as though Judge Persky has routinely showed leniency in sexual assault cases, especially where the defendant is white or otherwise “privileged.” The opposition’s website debunks these claims in some detail, but the best example comes from an op-ed penned by Michael Vitiello of McGeorge School of Law and published in the Stanford Daily:

“According to recall supporters, People v. Ramirez involved a minority defendant, similar to Turner, but whom the judge sentenced to a three-year term of imprisonment. A part from many other factors that may have explained disparate treatment (not visible based on the sentence), Ramirez pled guilty of a crime that required a mandatory term of imprisonment; Turner’s crime did not require prison time. The other examples cited by the recall supporters also failed to support a claim of Judge Persky’s racial bias.”

Against the lies and distortions spread by the Recall Persky campaign, the opposition effort has never received as many microphones with enough time to refute them in the minds of most voters. To paraphrase an old cliché, lies travel halfway around the world before the truth finishes putting on its shoes.

However, the main reason for the recall’s (anticipated) success is this: the political establishment and its affluent, upper-middle class voter/donor base has demanded Judge Persky’s ouster. The recall’s opposition has not rallied a working class voting base to outweigh the recall’s supporters.

The opposition to Persky’s recall include Jeff Rosen, Santa Clara County’s elected district attorney, Molly O’Neal, the county’s appointed Public Defender, the Santa Clara County Bar Association, retired Judge LaDoris Cordell, and a host of attorneys and sitting/retired judges. Their chief argument against the recall resonates with all the platitudes one would find in a high school government textbook; an independent judiciary, one that upholds the rule of law and apply it to individuals regardless of public pressure, is necessary to our scheme of democratic governance. “Judicial discretion” is the banner most frequently waived against an “unprecedented attack.”

However, criminal defense lawyers, their clients, and their clients’ families have seen “judicial discretion” ruin lives and tear families apart. Before 2012, California’s Three Strikes law and later legal decisions gave judges “discretion” in deciding whether to dole out life sentences for felonies that were neither “serious” nor “violent.” California’s prison population swelled and increasingly skewed toward elderly inmates in need of major medical care as they aged. In 2006, the prisons’ healthcare system was placed under federal receivership as one inmate died per week, on average, for preventable medical reasons. “Judicial discretion,” historically, has been no friend to the minority and working class people on its receiving end.

Furthermore, the recall of Judge Persky is hardly “unprecedented.” In 1982, the voters approved Proposition 8, the so-called “Victim’s Bill of Rights,” which repealed any and all protections under the California Constitution against illegal searches and seizures and required judges to presume the defendant guilty for purpose of setting pretrial bail. In 1986, reactionary forces lead the campaign to oust California Supreme Court Justice Rose Bird during her judicial reelection bid in response to her commutation of too many death sentences. In 1994, California passed two versions of its Three Strikes law. The existing voting blocks in California have always voted to erode the rights of the accused, often in reaction to one sensational news story involving a photogenic victim. These laws almost always have a victim’s name attached to them and have wrought unintended havoc on poor, working class, and minority communities. Alternative voting blocs had to be energized among these marginalized groups, and the anti-recall campaign has done nothing to do this. Instead, both the recall campaign and the opposition hosted a single debate at an affluent Los Altos country club, in which a professor of high finance stepped in for Professor Dauber to debate Judge Cordell.

And so we are left with the ultimate question. A victim of sexual assault had her claims taken seriously and investigated by law enforcement. Brock Turner, the perpetrator, was brought to trial and found guilty by unanimous jury verdict. Although Brock Turner’s sentence was highly unpopular, it was not only legal, but recommended by Adult Probation after interviewing both Emily Doe and Brock Turner. Brock Turner will now live in perpetual infamy as a registered sex offender for the rest of his life. After the sentencing, the California legislature amended the Penal Code to stiffen the penalties for the felonies for which Turner was convicted.

How is this not a success story? The Democratic Party in Silicon Valley needed a scapegoat to energize the affluent, petit-bourgeois voter/donor base in light of its demoralizing 2016 loss of the presidency to David Duke’s favorite gameshow host. As always, the people who will be sentenced more harshly by judges afraid of being “Persky’d” at the ballot box are far removed from this upper-middle class social milieu. Due Process and the rights of the accused are of little interest to Professor Dauber in particular and her social class in general. This voter base seems to labor under the notion that stiff prison terms will serve as tough medicine for sexual assault and rape culture.

Because there is no sexual assault or rape culture in prison.

Sailing Into the Wind

Every professor, mentor, and supervisor that I’ve ever had has given me the same warning: representing a person is about advocating for an individual, and not using that person or his case as a tool to make some larger point about society. This may surprise many of my readers, since many lawyers have spent the past few decades using individual lawsuits as vehicles for sweeping social changes. All of us are the products of economic and social forces far larger than ourselves; many of these forces are global in their scope, and my clients often cling to the bottom rungs of the social ladder while these forces blow them from place to place like a gale. Despite this, individualized justice does come for my clients every so often.

 

This is one such story.

 

At the age of 15, Ernesto’s parents hugged and kissed him goodbye just before he clambered onto the roof of a train that had stopped in his hometown in Central America. He joined a dozen others on the roof and rode the train away before the drug gangs in his town either recruited him, killed him on purpose, or killed him in accidental crossfire. He crossed Guatemala, Mexico, and finally the border into the United States; once here, he rejoined his older brother, who had made the same journey years before and had settled here in Santa Asphalt where I practice.

 

Rather than enroll my client in school, Brother brought my client with him to Home Depot every day to wait by the lumber loading area to wait for one of Santa Asphalt’s better-heeled residents to swing by in their Land Rovers and Escalades and recruit them for some sort of temporary outdoor labor. Yet Ernesto found himself in the United States, where high technology is rendered unfashionable by higher technology every year, and Ernesto found himself an affordable smartphone.

 

After he had turned 16, a friend introduced Ernesto to Nicki; Nicki went to school with Ernesto’s friend, and the friend assured Ernesto that Nicki was “easy.” Nicki and Ernesto traded text messages at first, and later on dirty pictures through a phone app designed to let people trade temporary, self-deleting pictures with each other (seemingly designed for teenagers to use the high-powered cameras in their pockets to send dirty pictures). Dirty pictures lead to an in-person meeting. This meeting turned into many, many sex acts in Ernesto’s brother’s car. Sex acts in the car lead to sex acts in a hotel room with my client and his brother. The next morning, Nicki’s parents called the police as soon as she returned home. Nicki, who was only 13 years old, told police that she felt as though she had to acquiesce to my client’s requests and that she didn’t really want to do any of the things that they did together.

 

Two weeks later, I walked into court to appear with Ernesto for the first time; the District Attorney had decided to prosecute Ernesto as an adult. I approached the Sheriff’s deputy in the courtroom who was in charge of inmate movement and asked about me client; he warned me that bringing a minor over from juvenile hall always took a long time, and that I should make myself comfortable in the courtroom while I waited. Instead of being comfortable, I decided to take a seat in the courtroom gallery next to the DA  and the lawyer who represented Ernesto’s brother. I sat and listened to the brother’s lawyer finish his pitch to the DA; unlike my little client, the lawyer argued, the older brother had not traded dirty pictures with the girl (each of which was child pornography, even if possessed by my underage client), and had engaged in about half as many sex acts with her. The DA scowled, but reluctantly agreed that my teenage client was far more morally culpable than his older brother, and then said that she would be willing to offer my client 9 years in state prison, but offer 5 years prison to his brother.

 

“Horseshit,” I blurted from my seat in the row behind them (I am still mildly embarrassed at having lost my cool so audibly). I knew that California had crafted a number of frightening ways to penalize teenagers for having sex with each other, and that even an offer of 9 years was below my client’s expected post-trial sentence. But the unfairness of the situation burned in my gut. Struggling mighty to keep my tone and pace even, I retorted that to my client, his victim was a social peer, and not someone whom he had hunted as vulnerable prey. I conceded that 13-year-olds could not give legal consent, but insisted that my teenage client’s interest in a 13-year old peer did not merit him being added to the Meghan’s Law sex offender registry along with serial predators and bona fide kid-touchers (many of whom I had represented). The DA shrugged with a nonchalance unbecoming of someone who wields so much power and reminded me that trial (and inevitable conviction) was the only other option.

 

Earlier in my career, I would have gone back to the holding cell and affirmed that our situation was, in fact, hopeless. But thankfully for me, I’ve had many clients who were 1) keenly in tune with their instincts and knew when they were being treated unfairly and 2) willing to resist in the face of what looked like certain defeat. More often than not, the chaos inherent to fighting a case delivers pleasant surprises, and sometimes, these clients wind up better than they would have had they accepted their first offer. This experience let me go back into the cell to face Ernesto, watch his face sink as I relayed the 9 year offer, but then watch it lift again when I vowed to stand by his decision not to accept the plea bargain.

 

Besides, I knew something that our DA did not seem to know; in a matter of months, Californians would get the chance to vote on what was known as Proposition 57, a criminal justice reform measure that stripped the District Attorneys’ offices of their unlimited power to decide whether to charge minors as adults. Proposition 57 would require that all criminal cases with minor defendants begin in juvenile court until and unless a juvenile court judge decides that the minor’s crime is too serious and that the juvenile justice system lacked the resources to rehabilitate the minor before he reaches age 21. Juvenile defendants currently in adult court would have their cases automatically returned to juvenile court for the juvenile court judge to render their findings.

 

In the past, Californians had sorely disappointed me with their votes on criminal justice measures by voting for every aggravation of criminal sentences while nixing every tax increase that might allow them to be housed in a safe, humane manner. But early polls had suggested that Proposition 57 would pass, and so I gave my young client advise that I had never, ever given before; “We can fight your case, but let’s try to drag it out until after the election.”

 

However, Ernesto’s preliminary hearing came before Election Day; the DA would have to present his young victim and have her testify in open, public court; her testimony would have been private had the case been in juvenile court, but who am I to question a prosecutor on what is in the victim’s best interest? Nicki testified as the first witness. In order to maximise the number of charges, the DA lead Nicki through an exhaustive list of all the things that she and my client did. Nicki then testified that she did not really want to do anything with my client, but nevertheless did everything he asked her to do.

 

Then came my cross-examination. In order to prevent the DA from alleging that my client had used “force, fear or duress” to commit his crimes, I had to walk Nicki through each and every time my client asked (yes, asked) her to do something with him (or to him). When my client asked Nicki if she would touch his groin, she said nothing but her hand in his lap. When Ernesto asked Nicki whether she wanted to be touched, she said “whatever.” When Ernesto asked her whether she wanted to have a “threesome” with his brother, Nicki said “whatever.” When Ernesto double-checked with her to see if she was “cool with it,” she responded by saying “I don’t really care.”

 

At this point, I had to pause. “I don’t really care.” Of all the possible answers a person might give to the question, “would you like to have a threesome,” I never imagined a situation where a person’s response would be “I don’t really care,” and I never fathomed that a 13-year-old would give such an answer.

 

“Do you believe that you have the right to tell someone ‘no’ when they ask for something sexual?” The DA got halfway through leaping out of her chair before catching herself and realized that I had not (yet) crossed the line. Normally, a victim’s sexual history is deemed irrelevant in most cases, and judges strictly observe this rule. But I had not solicited her history, only her beliefs. The DA returned her butt to the chair and waited for Nicki’s answer.

“I’ve never said no,” Nicki said. As badly as I had felt for my client up until that point, I knew in my heart that he had never been through….whatever personal tragedy had left 13-year-old Nicki unable and unwilling to refuse sex.

 

I tiptoed to my next question. DAs loved to use age differences between defendants and victims as a basis for arguing “implied duress,” a theory of duress that plays much more strongly between a child victim and an older authority figure. “Were you intimidated by my client being older than you?”

 

Nicki looks to her victim’s advocate, seated behind her on the witness stand, and turns back. “Ernesto’s the youngest guy I’ve had sex with.”

 

I paused and looked through my papers as though I were looking for more questions to ask. And then I looked up, and continued to pause.

 

“No further questions.”

The magistrate judge who heard the hearing found that there was enough evidence for Ernesto to stand trial, but then invited us into chambers. This judge was one of my favorites: an elloquent man with a bushy moustache who often gathered 5-8 interns in his chambers to hear his many nuggets of legal and historical trivia. He leaned back in his chair, leveled his gaze at the DA over his glasses, and asked: “what exactly are you doing with this case?”

 

“What do you mean, Judge,” the DA replied with a feigned lack of understanding.

 

“Why is this kid charged as an adult?” This judge was a veteran of our county’s juvenile court system, and had seen many cases more heinous than Ernestos, and had seen minors far more troubled than Ernesto be rehabilitated and successful after completing juvenile probation. The DA nodded as though she were actually listening, and then said that it would be my responsibility to prepare a presentation for her, her immediate supervisor, and two supervisors above her at the DA’s office to convince them to reverse their decision to charge Ernesto as an adult, and then helpfully reminded me that her 9 year prison offer would stand until the trial date.

 

My advice to Ernesto remained the same: let’s see what happens after the election.

 

Proposition 57 passed in November, and Ernesto’s case was immediately returned to juvenile court. The juvenile court judge who heard Ernesto’s case decided that since Ernesto was only 16 years old, the juvenile justice system had ample time and resources to 1) ensure that Ernesto completed some form of formal education and job training and 2) receive a severe enough punishment for him to learn the importance of seeking affirmative consent from sexual partners, all of whom must be his own age. Ernesto is now serving a sentence that entails 6-8 months in a confined facility (the most restrictive sanction available to juveniles who are not sent to prison), but will in the process continue on an accelerated path toward a high school diploma; at the end, he will likely live with a local cousin who has stable employment, a nuclear family, and far better judgement than Ernesto’s brother.

 

I remember the day I gave this news to Ernesto; he and I sat in a private room in his juvenile hall dorm and spoke through a Spanish interpreter. As I laid out how his next 6-8 months would look, I thought about the (literally) global forces that had pulled on Ernesto’s life to bring him here. Transnational gang violence pushed him out of his homeland. The state of California activated its vast prosecution/prison apparatus to try to claim nearly a decade of his life, but not before the same voters who had built this apparatus had a change of heart and decided to scale back prosecutorial power just in time to save my client. These forces churned, fought, and finally settled in a way that gave justice to one of my youngest and most vulnerable clients.

 

How about that?

 

Many people might look at a story like Ernesto’s and universalize his experience so that it can be inflicted on others. Some might look at Ernesto, label him a sexual predator, bemoan the tolerant state that allowed him to be treated like the juvenile that he is, and use him as a reason to make juvenile sentencing harsher on everyone. Others might question why Ernesto was brought into the system at all, given that he had no clear reason to suppose his partner was not really consenting and that teenagers having sex with each other should not be illegal under any circumstances; but these well-meaning bleeding hearts would effectively leave my client to continue making 5’s and 10’s in the Home Depot day labor market with no education and no reality check that his bad decisions can have dire consequences for him.

 

As his lawyer, my only concern is that things turned out well for him, as an individual. I think they did. In fact, Ernesto’s case was one of the only juvenile cases that I have had where the most restrictive option was the best option.

 

Respectfully Submitted,

Norm DeGuerre  

Dear Norm: How Do You Defend Those People? (Part 3,223)

Dear Norm:

How do you defend those people?

No, I don’t mean “how can you live with yourself ensuring due process for people who have done really really bad things” or anything like that. I mean, how do you actually do it? When you have a client accused of something awful, and he/she has next to nothing by way of a defense, how do you defend them anyway?

Sincerely,

Asking for a Friend

 

Dear Asking:

This question hits close to home. As mentioned in previous posts, I’m in the midst of the most serious trial tour that I’ve ever had. Every so often, you hear a story in the news where your jaw drops and then you check the locks on all your windows and doors… and then you call your grandma to tell her to check the locks on all her windows and doors… I will spare you the details, but suffice to say I have a new client who did something very, very bad. Because he was arrested at the scene of the crime, there is no identification issue or shoddy detective work that will let me claim that someone other than my totally innocent client must have done this heinous thing.  With all of the different charges and enhancements, this client faces a sentence of more than 100 years to life.

So where does a public defender start in defending this client?

First, I mentally prepare myself for the very real possibility that I will be stuck taking this case to trial, despite the lack of defense and withering, death-ray stares that my client and I will face from the jury during the entirety of the trial. The assigned prosecutor may not want to make my client any sort of plea bargain. “This defendant is the worst of the worst,” Mr./Ms. District Attorney may say, “and he deserves nothing short of a life sentence.” This may be true, but it does not relieve me of my ethical obligation to safeguard my client’s rights unless he is offered something in exchange for giving them up. It is not in my client’s legal best interests to simply plead to a life sentence out of hopelessness, and I will never tell him to do so.

Second, I drastically recalibrate my sense of what a “victory” would be in a case like this. I assemble all of the facts that weigh in favor of conviction, find the handful of “good facts” that weighs against a particular charge/allegation, and then decide which charges or enhancements I can argue against with a straight face; even in the deeply horrendous cases, prosecutors still overreach and charge more things than they might be able to prove. Then, I ask myself “so if by some improbable happenstance I manage to beat the charges I’m contesting, what does my client get?” For the client described above, I define “victory” as beating the two enhancements that carried a mandatory life sentence so that, in theory, I can try to convince a judge not to impose a discretionary life sentence on the remaining charges. Yes, “victory” is a relative term.

Third, I must earn enough trust from this client so that if an opportunity does come for him to save his own life, he’ll heed my advice and seize that opportunity. I sit with him in the jail interview room and listen to his half-hearted denials of guilt. Rather than cross-examine him and dissect his claims for implausibility, I gently remind him that ultimately, a jury would be asked to compare the victims’ word, the medical evidence, the photographs, and the client’s first version of events that he shared with the police to this new, second version of events that he now offers me. I see his face sink, ever so slightly, with realization; I have succeeded in grounding my client in the reality of the evidence against him without moral judgement or direct confrontation.

Fourth, I must give the client something that he gets to decide for himself. Clients hurt themselves most when they feel out of control over their legal situation; such clients feel “railroaded” and see their public defender as just another piece of the machine that is pushing them toward a certain outcome. When this happens, the client resists the public defender’s advice just for the sake of resisting the process as a whole. I remind the client that the decision to go to trial and the decision to testify are his and his alone, but I also remind him that he has the power to set a more realistic goal for himself. For example, for a client looking at a life sentence, pleading to any kind of determinate prison term, even if that sentence is dozens upon dozens of years, is still better than a “life” sentence; prisoners with (theoretical) release dates are categorized differently and are housed in less restrictive settings; such a situation would still guarantee a “life” sentence as a practical matter, but the quality of that “life” in prison would be substantially better. With this in mind, I tell the client that he has the power to “offer” the district attorney a plea to many dozens of years in lieu of a life sentence in exchange for not making the victims testify in court.

Before trial is the time to get creative to do whatever I can to make my client’s experience better for him. Like I said above, any sentence with a number is better than “life.” But there might be other things to consider. A coworker once told me a story of a man accused of felony child abuse causing death, a charge that carries a sentence of 25-life. Unlike first or second-degree murder, the crime of fatal child abuse does not require any particular intent, let alone the intent to kill that is required for a murder charge. Regardless, my coworker’s client agreed to plead to one count of second degree murder. Why? Because not only does second-degree murder carry a lesser sentence (15-life), but the charge itself would guarantee a less dangerous time in prison than a charge of child abuse causing death. This was arguably a better outcome (When your cellmate asks you, “So whadda ya in for?” What would you prefer to tell him?), and the client had the clarity of mind to make this deal because it was something that he felt he had the power to do in the universe of drastically-narrowed possibilities in which he found himself.

Fifth, I can make a pitch to the District Attorney on behalf of my client. The key is to remind the DA that a person is not born with the urge to…God, I can’t even say it, but such a person can only be made. Granted, most people with terrible childhoods and mild mental retardation do not go on to do the things that my client did. However, a substantial part of my client’s childhood was spent holding a gun in a closet and listening for signs his mother’s john was getting out of control. We can’t pretend that this had no impact at all on the adult he became. I can make the argument that if my client does not deserve mercy now, he probably did at some point in his life, and the things that happened to him in between were rarely, if ever, under his control to prevent.

Sixth, if this case does go to trial, there are a handful of tricks for losing with style and dignity.

  • Consider waiving opening statement; opening statements can be treacherous things in that if you promise the jury that the evidence will sound a certain way, there is a real possibility that the evidence will come in much worse than expected. Sometimes it is best to say nothing up front, let the wave of awful wash over you, and then attempt damage control during closing argument. Also, defenses sometimes “pop up” if the district attorney screws something up.
  • During the victims’ tearful testimony, get the information you need from them as gently as possible. During closing argument, accuse the district attorney of exploiting emotion and sympathy while holding yourself out as the sober, rational alternative.
  • Make objections under the United States Constitution, and not just the California Evidence Code; maybe your client will have a chance at tying up the system in federal post-conviction litigation if he preserves a “federal issue” in the record.

 

Finally, I document every decision that I make in the case as well as the reasons for it. My client will be convicted, an appellate lawyer will be running a fine-tooth comb through the record of the trial, and if I screwed something up so badly that my representation was constitutionally defective, then appellate counsel can (and should) argue this to the appellate court. Before actually presenting this argument to the court, appellate counsel will contact  me informally and ask me questions about why I decided to conduct this client’s defense the way that I did. As unbelievable as it may sound, this will not be my last truly awful case, and not every decision or its rationale will burn itself into my mind. If can’t defend myself, my client’s next lawyer will argue that I didn’t defend my client either.

Does that sound simple enough?

 

Respectfully Submitted,

Norm DeGuerre

“Staying Billable,” or “Norm Reviews: The Six-Minute Solution”

Saint Asphalt, my county’s namesake, lived in what is now Eastern Luxembourg in the 15th century. She was known for her extreme compassion for the poor and her miraculous efforts on their behalf are what eventually led to her sainthood. Saint Asphalt would take a person’s problem, dig a hole in the ground, put the problem in the hole, and then cover it all up with bits of rock and dirt. Miraculously, the problem ceased to exist. So many of her followers came to her for help that eventually the small city she lived in turned into a hardened shell, with absolutely no problems. No problems whatsoever.

In this post, I would like to speak a little about anxiety. I know that my writing has been a little lean for the past year or so. That is because I have been on a “rest assignment” rather than an exciting “trial tour.” My office regularly rotates attorneys through assignments to help them avoid burnout. While I enjoyed the lower stress and regular office hours, finding interesting material to write about was quite a challenge. I found myself using the new lifestyle to gain some perspective on my inner being as I continued to adjust to life as a family-man.

I decided to use my “rest” time for some internal renovation; I resolved to deal once and for all with the anxiety that would sometimes paralyze me at work.

“Well of course you’re anxious; you have an incredibly stressful job!” This is what well-meaning colleagues told me when I worked up the courage to confide.  So I would stop talking and leave the topic to smolder like a dumpster fire. I replayed their chipper explanation in my head as, “My feelings are normal. Why should I think I’m entitled to feel anything other than terrible all the time?” Which then turned into, “I have to stop feeling this way. My feelings bore people. ” Which turned into, “My feelings are a weakness, and I’d better keep them hidden.” Which invariably turned into, “My feelings are literally Hitler right now.” It wasn’t until I began paying a professional by-the-hour, twice-per-week that I actually told someone what I meant by anxiety. While it’s true that my job is indeed stressful, when I stayed too long at this shallow interpretation, I found that I lost intimacy with my deeper feelings, with what was really going on inside of me.

Let me illustrate by telling you about one focus point around which my anxiety would swirl: the red blinking light on my desk phone that warned of a new voicemail. I hated checking my voicemail. One red blinking light was an angry message from a client who was mad at me because I was too busy being in trial to visit him at the jail. Another red blinking light would be from the family of the client whose trial I had just finished, and I would have to deliver the message framed as “happy news” that their son would be out before they turned 70. Another blinking red light would be from the DA, and she would have more bad news for me or for someone else that I would have to deliver.

One constructive way to deal with this issue would be to check the voicemail right away, make the return phone call or calls first thing in the morning and just be done with it. That’s not exactly what I did. I tended to wait for when I would have adequate emotional space to handle such difficult conversations, and then make the return calls at that time. Of course, what ended up happening was that the damn blinking red light of doom would menace me all day until it was time to go home, where I knew it was still blinking, waiting for me first thing in the morning.

Then there were the piles of files on my desk. There was never any time to open a calendar and triage the most important and urgent tasks first; everything is important and everything should have been done yesterday! So I grabbed the nearest thing and worked on it until I could, in a better conscience, stuff it away in a drawer so that I would not have to look at it any more. I repeated this until about midday when my mind would start to wander to something, anything else. I would take a short break to regroup, end up by distracting myself for far too long, then after my hurried snap-to, I continued to shuffle the remaining piles as quickly as possible until it was time to go home. I left work with a crushing sense of defeat and dread for the next day. I tried to avoid talking to anyone that I didn’t have to. I worried that if I spoke to anyone for too long, they would find out. They would find out that I was a terrible, terrible fraud. That I was a scarecrow held together by duct tape into a surprisingly passable resemblance of a good lawyer and functioning person. And O! The shame! Such shame behind that mask of adequate functionality!

I speak glibly about this now. It took me a few months of speaking to a professional to realize that I was the one doing this to myself. Not my clients, not opposing counsel, not the blinking red light of doom; it was me making myself miserable.

Tolstoy famously said that happy families are happy for the same reasons, while each unhappy family is miserable in its own unique way. From my reading, I learned that the psychologist, John Gottman, proved less-famously that the opposite is true; happiness allows for unique and individualized relationships between people, while misery makes our interactions more rigid and thus more predictable. The widespread misery of lawyers is noted in legal circles with an almost blasé boredom; every few weeks a new story appears about how lawyers have the highest rates of suicide, divorce, and substance abuse of any group of professionals. The state bar’s required 1.5 hours of education on the topic has done little to stem that tide.

I believe that lawyers’ collective unhappiness splinters off into a handful of predictable flavors. Mine has been anxiety, and so this led me to pick up Scott Rogers’ book “The Six-Minute Solution” in recent weeks; Mr. Rogers’ primer on “mindfulness for lawyers” has quite a few good things to offer, but also accidently reveals a surprising amount about the collective state of unhappiness among anxious lawyers.

Mindfulness has become vogue enough to where law schools now offer courses on it. “The Six-Minute Solution” presents mindfulness as a blend of Eastern meditative practice and cognitive-behavioral therapy. The lynchpin of mindfulness is sitting in stillness and quiet. Thoughts will inevitably float through your bubble; Rogers anticipates that many of these thoughts will be about the seemingly more productive things that you should be doing (finger wag) instead of sitting still doing nothing. However, the anxious lawyer returns to stillness by recognizing this guilty notion as a thought, nothing more, no more important than any of the many thousands of thoughts that pass uninvited through one’s head every day.

Rogers warns us that the mind will not readily slip away and leave us in our calm silence. By observing our anxious thoughts as mere thoughts, we then wander into deeper, less transient thoughts: thoughts about ourselves as people that give rise to the scolding surface thoughts that come during the first few moments of stillness. Rogers borrows a term from cognitive behavioral therapy and calls these automatic thoughts. Automatic thoughts are thoughts we have about ourselves; many of them are negative, and most of them are the result of repeated patterns of interactions that we have had with others. These thoughts come so quick that sometimes we don’t perceive them as a thought, more of an internalized self-projection we assume is true. I’m not good enough/smart enough for this job. Everyone else has their shit together except for me. I’m a fraud and everyone will find out sooner or later. According to Rogers, repeated mindfulness practice can lead to serious examination and confrontation with these destructive automatic thoughts, and that process begins by seeing them, experiencing them, and recognizing them as mere thoughts, and nothing more.

Rogers’ book is one of many available on the topic of mindfulness, but is one of the few directed specifically at lawyers. Rogers makes several stylistic choices that arguably reveals more about his audience than it does about his subject matter.

Rogers presents mindfulness concepts in one–and only one–format. First, a mindfulness concept or meditative practice is presented in reference to some sort of legal principle or concept (presumably to make it memorable for the reader). Second, the concept is presented. Third, Rogers presents references to scientific journals to prove the long-term effectiveness of mindfulness techniques. These three steps repeat once per page, and all but a couple of concepts require more than one page.

If we assume that this is an effective method for reaching his audience, what does it say about his audience? How skeptical must his audience be to need reassurance on each and every page that neuroscientists have given these concepts appropriate levels of peer-reviewed scrutiny and, thankfully, can reassure us that they aren’t snake oil? Personally, I have found lawyers, in general, to be a very skeptical group of people. I myself see no problem with skepticism, but I know–don’t ask me how I know this–that skepticism slides easily into cynicism and distrust. Lawyers, as a group, show profound distrust of any self-care technique that doesn’t involve booze or Crossfit-levels of pain. In this regard, I think that Rogers understands his audience.

I did find curious his frequent reliance on legal concepts that I haven’t had to use since law school. For example, Rogers offers one particular meditative practice that involves specific patterns of breathing and hand placement that he calls “The Learned Hand” technique. Who was Learned Hand? In law school, every lawyer is taught that the Honorable Learned Hand was a very smart, very important judge who wrote very smart things about…well, like 99% of lawyers, I haven’t the foggiest idea of what Learned Hand was actually famous for. But like many of the legal concepts that Rogers uses to introduce his mindfulness techniques, the phrase “Learned Hand” takes the reader back to law school more than anything else. Is Rogers really relying on these tired law school tropes to teach his concepts, or is he trying to take the reader back to a time in his life when being a lawyer was a dream and a goal, rather than a source of pain?

I do have but one grievance with Rogers’ book. The main obstacle to lawyers caring for their own well-being is the myth that they just don’t have time to care for their own well-being, especially when they’re at work. Rogers gives quiet support to this myth by reassuring the reader of just how little time his techniques require. He does this as early as the title of the book; six minutes is equal to 0.1 hours, and it’s the minimum unit in which a lawyer bills a client for her time. Surely this is not coincidental; Rogers reassures his reader that his techniques will only consume the absolute minimal amount of time that is worth anything at all to a lawyer. I believe this phrasing gives tacit support to the idea that a lawyer is only worth his or her billable time. Rogers even reassures his reader that she can practice certain mindfulness breathing exercises while talking to a client or while in court! It is certainly efficient to be able to bill a client for the time that you spend taping your sanity back together, and I believe Rogers’ encouragement of this behavior somewhat undercuts his message.

While “The Six-Minute Solution” is an approachable, easily digestible introduction to mindfulness, overcoming anxiety takes far more time than it will take the reader to finish this book and the 0.1 hours per day putting it into practice. My suggestion, if you’re looking for mindfulness resources, is to start with Rogers, and then keep going. For the first time in many years, I finally feel as though I’ve gotten my head above water and I gave a lot more attention to my self-care than six minutes per day.

So what did I finally do to overcome my anxiety? Well, like I said before, I started seeing a therapist. Hmmm. Yes, I see. I found a form of exercise I enjoyed. En garde! I cleaned out all the clutter in my office once and for all. Does this old file on my desk spark joy? And I make a list every Friday afternoon with the tasks I have to do for the following week. Interview rooms at the jail full? On to the next task! I’m also more sensitive to things that contributed to my anxiety and I’m proactive about dealing with them. This box of paper transcripts I keep kicking under my desk will upload or die! Now, I find that I have plenty of time to plan and organize, and no time to waste on anxious worry.

Do any other lawyers out there relate? What helped you? I would love to hear more ways to overcome anxiety in the comments.

Respectfully Submitted,

Norm DeGuerre

 

Sworn to Silence

The public defender who hired me warned that most of our attempts to help our clients will fail, despite our very best efforts. But she went on to say that even when all of our efforts fall short, a defendant’s public defender can and must always be the client’s voice in the courtroom; even as all the grinding parts of the machine line up against the accused, his or her public defender will always stand beside them and insist, with intelligence and passion, that the person on the receiving end has wants, needs, and interests that must be heard.

This is a story of how I may have failed to be a voice for a uniquely vulnerable client. Let’s call her Letty.

Letty ran away from her parents’ home in Dingy Suburb two weeks after her 18th birthday. Unfortunately, Letty had a less-than chivalrous boyfriend with a pitiful attempt at a moustache (let’s call him Dirt Lip). Dirt Lip promised Letty that they would “make it” on their own with the help of an older friend who lived two-hours away in Big City.

Dirt Lip’s “older friend” was a heavily-tattooed East Coast gang member who had decided to seek his fortune –and meth– out West. Older Friend explained to the young couple that he “looked after” three other girls. By “looked after,” he meant that he kept them stocked with crystal meth, reminded them of the number of Johns they had to service to pay him back for the dope, and handled their money for them to ensure that he was compensated for the hotel rooms, the drugs, and his time as their “security.” Dirt Lip assured Letty that this was nothing at all like pimping, and pointed out that unless they could find some way to pay the older friend back for the hotel room that he had booked for them –without asking first– Letty might have to follow the girls’ lead and make some quick cash.

Thankfully for Letty, Older Friend’s taillight failed to come on as he drove her and Dirt Lip back to their hotel. Before the highway patrolman could even begin to open his book of tickets, Letty blurted out as much of her story as he could to the surprised officer before he told everyone to be quiet and get out of the car. The officer quickly noticed that everyone was high, arrested them, and found Older Friend’s half-ounce of crystal behind the driver’s seat.

Per local custom, our district attorney decided to accuse everyone in the car of possessing the meth with intent to sell or distribute. Dirt Lip was a juvenile, so he never found his way into my courtroom; Older Friend hired a real lawyer, and Letty came to me.

The courtroom stood mostly empty when I arrived for our pre-trial hearing; I was the first lawyer there. Letty sat handcuffed in the jury box, swimming in her ill-fitting orange jail uniform. I began with my well-rehearsed “Trust Me Quickly” routine: handshake, business card, assurances that I am, in fact, a real lawyer, explanations of the charges, and our reasons for being in court that day. Letty responses ranged from “yeahs” to nods without eye-contact; I wasn’t entirely sure that she understood everything or cared about the parts that she did understand.

The DA and Older Friend’s lawyer came in together  before I could begin discussing her options for going forward. Older Friend’s lawyer was laughing at his own joke and he was wearing a tie with golf balls on it. The DA looked to me from across the room, pointed his thumb out the courtroom door, and mouthed something that I took to be “can we talk outside?”

I winced. Even if I included the squirrels fighting over dropped french fries on the sidewalk outside the courthouse, this DA was not my favorite mammal in the area. I promised my client that I would let her know everything that happened outside upon my return. I followed the DA outside.

“So I’ve decided to add pimping and human trafficking charges against the codefendant.”

“I can certainly see why,” I replied. Normally at this point in the conversation, this DA would have threatened to add extra charges against my client if she decided not to plea guilty to something. So I waited to hear what was coming next.

“I’d like your client to testify against him.”

“That can’t happen so long as you’re accusing her of possessing her pimp’s crystal meth,” I said in the blandest tone possible. Despite my attempt to balance diplomacy with candor, the DA still sucked in his lip like he had done whenever a defense lawyer offended him.

“If she testifies today, I won’t object to her being released from custody without bail before her next court date.”

“And…?”

“And I’ll ask my supervisor whether we can reduce her charge to simple possession.”

I’ll ask my supervisor is easily my least favorite phrase that prosecutors give me. The ABA’s model ethics rules assure us that the individual prosecutor is the one who wields the power to decide what charges the state levies at a person; this allows the individual prosecutor to  tailor a just outcome. But individual DAs work for an elected District Attorney, and that elected District Attorney has tough-on-crime campaigns to run. To ensure that no individual prosecutor does something to undermine this stance, he or she must get approval from their supervisors to ensure that their individual actions harmonize with the administration’s marching orders.

“So…you want my client to waive her 5th Amendment rights and testify without any actual promises in return?”

The DA sucked his lip again. “Well, if she doesn’t I’m going to add misdemeanor prostitution charges against her after the hearing.” Here was the threat I was waiting for! On a side note, I have met many men who manage to have successful careers despite a complete lack of people skills, obliviousness to the norms of common courtesy, and deafness to the human consequences that their seemingly-mundane decisions have on others; many titans of the tech world thrive despite and because of these deficits. But during this conversation, I felt a pang of rage at the fact that a person can miss the sick irony of charging someone you believe to be a victim of human trafficking with prostitution and still thrive as a prosecutor. I assured the DA, in my blandest Swiss diplomat tone, that I would convey his “offer” to my client.

I sat beside my client again and resisted my urge to tell her which part of the human body best exemplified our prosecutor. Her eyes widened with fear at the prospect of testifying against her codefendant, but they shone when I mentioned the pre-trial release. “I get to go home today?”

“Hold on, please. It’s not that simple,” I warned, but I feared that I was too late. Her hungry look reminded me of a talk that I had attended some months before, where a doctor told me that the brain chemistry of a person withdrawing from methamphetamine is nearly identical to that of a person who has become delirious from starvation. The DA isn’t actually promising you anything, I told her, and that since the evidence against her was so weak, she should continue to fight the charges against her. If her cooperation is so valuable to the prosecution, she should not give up any of her rights without something equally valuable in return; a promise by the DA to “talk to his supervisor” did not strike me as equally valuable.

I tried so, so hard to persuade without bullying. But I did insist, multiple times, that going along with the DA was not actually in her best interest. When she finally agreed to go forward with the day’s hearing and fight the charges, her shoulders slumped in seeming defeat….and I feared that at that moment, I had become the bully that I thought I was protecting her from.

But I had no time to backtrack; the judge was going to take the bench any minute and I could not afford to have her rescind what I thought was the wiser decision, even if she made it for the wrong reasons. The DA flushed when I told him that my client had decided not to help him.

“All rise.”

Today’s judge left his chambers and took the bench. He called our case and asked whether all three of the lawyers were ready to proceed. The DA then called his first witness.

My client. He called my client as his first witness.

“You honor,” the DA intoned with as much solemnity as he could muster, “We will be asking the court to grant her immunity for the testimony that she is about to give today.” Normally, immunity is a gift; in exchange for testimony, the defendant is granted immunity from having any of that testimony used against her. She would also be immune to any new evidence that law enforcement discovered thanks to her testimony. However, it did not feel like a gift; the DA couldn’t get what he wanted by persuasion or bargaining, so he was going to take it from her.

My client turned to me as though someone had asked her in classical Arabic to perform surgery. “What am I supposed to do?!”

“Nothing bad is going to happen to you,” I whispered, just loudly enough for the other lawyers to hear. “The DA’s deciding he’s going to steal what he wants from you since you’re not willing to just give it to him for free. We’ll go up together, and all you have to do is answer the questions honestly.” I then leaned in closer and lowered my voice to an actual whisper. “Just don’t blurt out anything about anything illegal you did beyond this case.”

I kept pace with my client as she shuffled up to the witness stand. I pulled her chair out for her and sat next to her. I had never sat in a witness stand before; the courtroom looked less like a solemn chamber of justice and more like a big, cluttered, dreary office cubicle. The judge had too many windows open on his computer screen and struggled to find the one that would show him the court reporter’s transcript in real time. The court clerk had bins of paper clips, a half dozen family photos, and a carpet of post-it notes across the surface of her desk; her potted vine seemed oddly perky given its steady diet of fluorescent light. The codefendant’s Real Lawyer scratched his chin very seriously and wrote illegible things on his legal pad even when no one was saying anything. The DA shuffled some things at his desk and began.

Stone by stone, the DA elicited the walkway of sorrows that had brought my client into her current circumstance. However, the DA seemed utterly incapable of asking a non-leading question. “And so Mr. [Older Friend] brought you drugs?” “And later that day your boyfriend made an ad for you on Craigslist?” Being in the witness stand, I was a mere advisor and spectator and could not object to his line of questioning. As my client muttered “yes” to each question, I found myself wondering why exactly his questions angered me so. Was it the sloppy in-court technique? Was I feeling a hyper-competitive urge to shut down my opponent with objections? Was I just irrationally angry at the way the DA’s eyes narrowed at the end of every question, as though he was trying to spot lies in my client’s one-word answers?

Though I would have answered “yes” to all of these questions, the biggest reason came together during our closing arguments after the hearing. “Your honor, I question whether Mr. DeGuerre’s client is telling us the whole truth,” the DA mused as he began to argue why the judge should use her testimony to believe that codefendant was a pimp, but to disbelieve that she had no power or control over the Older Friend’s dope. My client had spent the past hour-and-a-half agreeing to all of the words that the DA had put into her mouth, and he had the unfiltered gall to challenge whether she had told the truth?!

What I realized hit me hard; at no time that morning did my client have her story or wishes spoken out loud. I had assumed that Letty’s first desire was to do whatever it took to free herself from pre-trial custody and blaze another pipe full of crystal, and I had insisted that her rights (in the abstract) were more valuable than the chance to get high sooner. She grudgingly adopted this view long enough for me to it repeat for the DA as my client’s stated position. I don’t necessarily regret having done this, but to this day I do not feel good about it. And then when she did get the chance to testify, she spent her entire time on the witness stand agreeing out loud to another man’s words.

Thankfully, the judge found that the DA did not have enough evidence against my client and set her free; my advice was thankfully in her short-term best interest as well. But if he had decided that the state had presented enough evidence to warrant a jury trial, my client would have sat in custody for months. If I knew with a clean conscience that this is what my client preferred, I wouldn’t waste a second thought. But to this day, no one really knows what Letty wanted because she never really got to tell anybody. From her history of drug use and evident desperation, I assumed that she would have said, “I’ll do whatever lets me open my own jail cell as quickly as possible.” Past experience tells me that when clients with drug histories do whatever gets them them out of jail faster, they inevitably return; they often relapse and either miss court dates or violate the terms of their probation. They end up picking up new charges and, in their renewed desperation, take even worse deals to get out faster. In order to talk someone out of this, I have to assume that the abstract notion of “rights” have actual value, and that this abstraction is more valid than the actual, tangible need to get free and make the withdrawals go away. But is this true? What am I supposed to do when my client’s voice is at odds with her best interest? If that day’s hearing had turned out differently, the abstract notion of “rights” would have meant very little to the real person fighting the shakes in a real jail cell.

Respectfully Submitted,

Norm DeGuerre

Triage

(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…”

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!”

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!”

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.