Transcript of His Honor’s Handwashing Liturgy, or The Defendant’s Romero Motion is Denied

Under California’s Three Strikes law, defendants with two or more serious or violent felony convictions receive a minimum sentence of 25 years-to-life for a third serious or violent felony. However, the defense may argue a Romero motion, which asks the judge not to apply the Three Strikes law during sentencing. In his deliberation, the judge considers the facts of the current case, the defendant’s criminal history, and the defendant’s “character, background, and prospects.” The hearing on a Romero motion, which is infrequently granted, follows a ritualistic pattern.

And, in my head, the ritual goes something like this.


His Honor:    Ave, Ave, now comes the formerly Accused, now Convicted, presenting himself for the Court’s mercy, garbed in the county-issued vestments of both protective custody and maximum security. Cursed is the snitch, for stitches he shall receive. Cursed is he who requires maximum security, and let him learn to correct his lawless ways whilst surrounded by those as dangerous as he. Counsel! Appearances, please!

Attorney for the District: Ave, Your Honor, for I represent the People of the State of California who are other than the Accused, now Convicted. We now present unto thee our young Acolyte, who is in his third year of law school, and who has been honing his skill in the sacred arts of shooting fish in barrels and confiscating sugary confections from the hands of babes.

Acolyte: Ave, Your Honor.

Norm:    Ave, Ave, Your Honor, Norm DeGuerre for the Accused, now Convicted.

His Honor:    Brother DeGuerre, thy Client presents himself as a supplicant before me, or would if his wrists were not bound by chains to his waist. Thy Client seeks the blessings of St. Romero, who many years ago, prayed for relief and received the miracle of mercy, for the court sentenced him as though he bore not the stains of having prior “strike” convictions. The Accused, now Convicted has been convicted of Robbery, and shall face a sentence of life despite the recently-passed Prop. 36.

Norm: Aye, Your Honor.

His Honor: We shall now begin the Recitation of Terrible Childhood.

Norm:    Aye, Your Honor, I draw thy Honor’s attention to the absence of family or loved ones, who have missed all court dates for the Accused, now Convicted since his junior year of high school. Scars of flesh and wounds of spirit have rent my client into a hastily-assembled scarecrow of the man he could have been had he more money and one caring, competent adult.

His Honor: Now, the Affirmation of Chronic Substance Abuse.

Norm:    Not since the party at Thy Honor’s law firm in 1982, when Thy Honor’s partners removed the mirror from Thy Honor’s office restroom, has such heroic quantities of Columbia’s Finest been consumed as was during the Convicted’s term on parole. But alas, the Convicted snorts not to celebrate, but to forget; and the Convicted spends not his disposable income, but his only income. Thy Honor’s campaign for the bench inspired thee to begin the 12-step purification rituals; alas, the Convicted has no campaigning or politicking for which to abstain.

His Honor: And now, the Plea to the Angels of the Eighth Amendment, in which Counsel will condemn the proposed life sentence as cruel and unusual. Make the plea now so that the Accused, now Convicted’s appellate counsel may brief later what I shall now ignore.

Norm: Your Honor, the Accused, now Convicted did violate the Seventh Commandment, in that he did take two tall-boys of St. Mickey’s Ale out of the refrigerator at the Try-N-Save liquor store, and did try to smite the security guard who declared him a “fucker” and who attempted in vain to wrest the tall-boys from the Convicted’s shaking hands. But your Honor may bestow St. Romero’s blessings for this nefarious misdeed and sentence him to 20 years, and not for the entirety of his life. After all, is the consummation of malt liquor not already a cruel and unusual enough punishment for Thy Honor?

His Honor: And now, Acolyte, commence the Padding of Thy Resume.

Acolyte: Your Honor, I entreat Thee first to gaze in horror upon the tattoos upon the Convicted’s face: Eww. Shine thine eyes upon the Convicted’s numerous parole violations, for they show the Convicted needs more time in prison so that he can learn the lessons that prison failed to teach. And Your Honor, if ye would, muster stale outrage for his burglary conviction from 1992 and his making of criminal threats from 1996, for in those years the Accused, now Convicted did take a Panasonic television set and later hurt someone’s feelings with empty promises of violence.

His Honor: Counsel, prepare thyselves for my ruling:

The conclave of voters hath spoken, and they hath spoken that Three Strikes shall be the law. Terrified they were of rapists stealing children from their homes in the dark of night, and so it shall be that the Wrath of Three Strikes shall smite those at whom we are merely angry as well as those of whom we are scared. If St. Romero’s mercy were granted to all whose woes would have been lifted during childhood by the healing touch of more money and one skilled parent, Three Strikes would smite hardly anyone at all. The plea for St. Romero’s mercy has failed, and the Convicted, now Sentenced shall dwell in a pit of despair to be determined by the Department of Corrections of the State of California. This pit shalt not be within 12 hours ride by Greyhound coach of his family, because really, Brother DeGuerre, as you’ve so pointed out, what are the chances of their visiting anyway? Also, this pit shalt not be rendered humane through adequate taxes, because the conclave of voters hates those. Verily, the conclave despises rendering unto Caesar sufficient ducats to pay for the sentencing laws they demand.

We will now commence the Washing of Hands. The conclave of voters has spoken, and this court shall not accept responsibility for their frenzied whims, nor the perceived disproportion of the court’s sentence to the defendant’s conduct. Verily, as all in attendance can see, I myself learned to make principled decisions long ago. I am only giving the defendant ample opportunity to learn the same lessons.

This concludes the Washing of Hands. You are now dismissed.

Go in peace, serve the Lord.

Respectfully submitted,

Norm DeGuerre

Where Mercy is Not a Virtue

In the mid 1990’s, a repeat-criminal kidnapped, raped and murdered a photogenic twelve-year-old girl. In response, the state legislature and the voters raced to pass their own version of the Three Strikes Law.

And now this law is used against children.

My client today is barely old enough to drive and has never been in trouble with the police. However, through what I assume is a wide array of forces beyond his control, he began hanging out with gang members. He and two others beat up a kid they believed to be from a rival gang. The fight ended when one boy stabbed the victim, collapsing his lung.

As horrifying as this is, understand that you, the law-abiding citizen, are not powerless. The State of California may not have the resources to send a train really fast to Los Angeles, but they have no problem pursuing, arresting, and incarcerating children.

And thanks to the Three Strikes Law, Californians are able to deprive this child of vast numbers of years of what may well be his very, very short life based upon a thoughtless-but-terrible mistake.

The District Attorney accused my client of assault with force likely to produce great bodily injury. This was not an inaccurate charge, but he went further to allege that this crime was done “in association with” a “criminal street gang,” making the offense a strike.

What my client did was wrong and he deserved the trouble he was in, but a strike is as heavy-handed as you can get for a minor’s first offense. Any legal trouble in the future, however petty, could thus mutate into a multi-year prison commitment simply because of one terrible mistake made without one iota of executive functioning or rational thought.

Clearly the right thing to do is to show some degree of mercy to a boy who has just made the biggest mistake of his life. In this case, mercy would have been to remove the gang “enhancement” which would also have removed the strike. This is the right thing to do because the entire State of California is now his opponent. Mercy, by definition, can only be given by the strong. The weak are in no position to exercise “mercy.” If the strong fail to exercise mercy, then mercy will not exist, and this boy deserved mercy.

And so I asked the District Attorney for mercy. He said no. So I withdrew my client’s time waiver, forcing him to prepare his case for trial in under seven days. The Sixth Amendment to the US Constitution guarantees a “right to a speedy trial” but a defendant may choose to waive that right. A common reason to “waive time” is if more time is needed to gather evidence for their defense, but clients can pull their waiver whenever they want. Setting a case for immediate trial is the best way I know to handle an arrogant DA. When threatened with the possibility of real “work,” DAs usually make my clients a more reasonable offer. This case was no different. The evening before trial, the DA called me and told me that “after talking it over with [his] supervisor,” a non-strike was called for.

At this point my client is not receiving mercy. I pushed a rookie DA into a corner through parliamentary tricks, and he decided that it was easier to drop some of the juggling pins.

So it goes.

I speak with the DA again about amending the charge to a non-strike. We then discuss the subject of sentencing, which is called “dispostion” in juvenile court – doesn’t that sound nicer? He thought my client deserved commitment. I disagreed, stating that probation and the judge should have the ultimate say.

I found the DAs offer distasteful because I was taught that we don’t negotiate a “plea bargain” with kids. “Plea bargaining” is that unsightly process that keeps the adult courts moving despite the grotesque over-burden. If every adult defendant exercised all of his constitutional rights, the system would grind to a screeching halt. To prevent this from happening, defendants are offered “deals” to make them plea guilty. But we’re not supposed to do that with kids – they take responsibility for what they did and it’s up to the judge and the probation officer to decide a suitable “rehabilitation” program. Because I was taught we don’t “punish” kids, either.

The DA left our conversation there, but I could tell that he was holding something back. He almost said SOMETHING several times, and made vague references to what His Office had discussed about the case.

When it came time to recite the plea bargain on the record, he finally said what he was thinking. What he wanted was for my client to plea to the non-strike with the expectation that he would receive a commitment – if the judge decided otherwise, the deal was off and my client would once again face trial-keep in mind this boy is barely legal to drive- for a strike offense.

Because after all, he gave my client SOMETHING. Is it so unreasonable for the DA to ask my client to give the State a little sumpin’ sumpin’ in return? Say a little sumpin’ like six months’ worth of shitting in a bathroom with no doors? This would be like a pickpocket telling you, “I didn’t take ALL of the money out of your wallet, so you should give me half of what I left in there out of consideration.”

My client took the deal anyway – I guess I did a very, very good job of explaining the dire consequences of having a strike on his record. But I worry that I failed him in a number of ways. Mostly, I worry that I failed myself. So many thoughts about this case needed to be said because I think they were true. And I suppressed truth. And where I didn’t suppress it, I lacked the emotional vocabulary to voice it in real time. Would it have helped my client? Maybe yes and maybe no. I did get him the best offer he could have received from the DA’s office without having to put my client through a trial. But I think it would have also helped him to see someone stand up to “the man” on his behalf and to hear someone on the record call “bullshit” to a totally egregious sentence.

Mercy is not given in exchange for something, otherwise, it is “consideration.” Mercy is given despite being in a position of strength; flexing your strength to make someone accept your “mercy” is actually intimidation. Mercy is given regardless of whether the person deserves it; if the person deserves what they get, that is justice, not mercy.

And very, very few boys do not deserve mercy.