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  

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Superior Orders

Do you know what’s even more difficult than dealing with someone who is outraged? It’s even more difficult to deal with someone who refuses to acknowledge that they are outraged and thus acting outrageously.

No, these are not clients that I’m talking about. This peculiarly irritating behavior only comes up when prosecutors find out that my client is an immigrant.

Unlike the prosecution, I don’t have the luxury of ignoring the immigration consequences that my clients face; the Supreme Court’s decision in Padilla v. Kentucky warns that my representation will be constitutionally defective if I fail to warn my client what the Feds will do to him because of any plea bargain. Immigration laws are barbed with hidden hooks that make someone deportable or excludable from the United States based on a single criminal case: domestic violence, substance abuse, and receiving a sentence of 1 year or more are all bases for deportation regardless of the length of time my client has been in the U.S. This is true whether they came willingly or were brought here by their parents, and whether or not they have any waking memories of their “home country.”

Thus, I’m obligated to ask the DA to make concessions that may minimize my client’s immigration consequences without denying the DA the punishment or charge that they want. Examples of these include:

  1. Asking for a sentence of 364 days in cases where the DA asks for 1 year. Believe it or not, this makes a difference in how the immigration courts classify my client’s conviction.
  2. In drug cases, asking the DA to amend the charging document so that it does not state the specific substance my client possessed.
  3. Offering to have my client plea to what may be a more serious charge because, for whatever reason, the immigration laws will look on it more kindly. For example, in a domestic violence case where your client hits his wife and then demands that she not call the police, he may be better off in immigration court after having pled to witness intimidation instead of a domestic violence charge.

These differences may seem minor, but they mean the world to my clients. In contrast, none of the examples above cost the DAs anything at all. However, my requests for these types of concessions are almost always denied.

My best example: a client of mine who had been in the U.S. for more than twenty years and the father of three American citizens, fell on hard times when his bedroom furniture store went under. A friend told him that he could make ends meet by selling small amounts of cocaine. Unbeknownst to him, this same friend was working as a “confidential informant” for the local narco cops. As a result, the only drug deals that this client ever completed were to undercover cops posing as buyers. This happened three times, resulting in three sales charges.

This client languished in custody for many, many months. He did not want a trial, because he had no defense. However, he did not want to plea because he knew that he would be deported back to the failed state from whence he came and never allowed to return.

I asked the DA for a number of comparatively minor things. The DA wanted a sentence of three years for cocaine sales. I offered three consecutive terms of 364 days (one per count) and requested that any reference to the specific controlled substance be deleted from the charging document.

Now, at this point, I must acknowledge that there are many (some of whom may be reading this) who would say that a cocaine dealer should not be given any mercy from the immigration authorities and should face the full consequences of their behavior. I understand why some would say that. And if the DA had simply responded to me by saying, “No, I want your drug dealer client to be deported,” I wouldn’t have been nearly as angry as I was.

What infuriated me was the sanctimonious, yet cowardly pretense of hearing the DA tell me he did not want my client deported, but that he had “no choice” in his actions. The first line of defense for a DA who does not actually want to take responsibility for a situation is to blame his or her supervisor. Again, my client is my ultimate boss; the DA has no client, and so their supervisors often fill that role. And it seems that an implicit part of a deputy district attorney’s job is to protect their supervisors from sounding too obvious when taking actions that say, “we want your client deported.”

I think this is why the response I got for this particular client sounded something like this:

Well Norm, I’ve asked my supervisor. I told my supervisor that your client has been here since before he could drive, and that his entire family are American citizens. But based on the facts of this particular case, we just don’t see a reason to treat your client differently from how we would treat a citizen.

I wished that he would have simply cut the shit and just said that they knew that my client would be deported and that they thought he and his family deserved it for slinging dope to an undercover cop. Because my client was, in fact, going to be treated differently for being a non-citizen; the trivial changes that I proposed would have made it more likely that he would be treated like a citizen. Refusing my proposal under the pretense of treating people fairly was, at best, slight-of-hand and, at worst, transparent bullshit.

Take ownership of the motives for your actions so that they can be discussed openly. That’s what is supposed to happen in a democracy, right? Apparently not, if you don’t have the right papers.

Respectfully Submitted,

Norm DeGuerre