Last Friday one of the first clients who ever retained me was sentenced for felony motor vehicle homicide. Joshua was 19 and on his way to work as a welder when he lost control of his Mercury Cougar and slid across the median into the path of an oncoming Camry. IN side the Camry was a man named Jack, 76 years old, and his grandson, also named Jack, age 14. Jack, Sr., swerved, either to avoid a crash or perhaps to protect his grandson from a direct hit. Jack, Sr., side took the brunt of the hit and, not wearing his seatbelt, he was killed, probably almost instantly. Jack Jr., spent just a few hours in the hospital but, being only slightly hurt and protected by the seatbelt, undoubtedly saw some things eh’ll have a hard time forgetting.
Joshua was life-flighted to the hospital and stayed about a week. His blood was drawn shortly after the crash and the test showed he was stone-cold sober. As soon as he could walk, he was arrested and taken to jail where he spent about three nights. Try as he might, he couldn’t remember the accident. He remembers stopping at Sonic for a slushie, to get him through a hot day of welding and then remembers waking up in the hospital. He remembers crying when the y told him the other driver was killed and then being arrested.
When I met Josh, I did something I do with a lot of younger clients. Speaking to Josh and his brother Jesse, I dropped a few “F-bombs.” In a lot of cases, with a lot of my criminal defense clients, this “broke the ice,” perhaps making them feel like I was not a “silk-stocking” lawyer. But when I did this in front of Josh and Jesse, they sort of cringed, creating the opposite of the effect I expected from experience. I felt bad for stereotyping these young men and worse for believing in such a stupid ploy.
Jesse spoke up next, asking, in slightly broken English, if I thought his brother would go back to jail and for how long. I told him that I didn’t know, that I would try to keep that from happening, but that it was up to the judge. Jesse then said, “Is the family of the man … Are they Christians? Cause we are?”
Now I felt worse for believing that these two would have fallen for the “f-bomb” trick.
Josh was not the type of client to demand any particular course of action in the case, such as a trial or a plea. His record contained only one entry before this incident, a speeding ticket for 5-10 over one week before the accident. While some of my clients knew “the system” inside and out, Josh had never seen it. Thus, he put his trust entirely in my judgment, quietly asking that I tried to make him out of prison if possible as he wanted to take care of his mother who was moving back to Omaha from California in the near future.
At our first pretrial hearing in the case, I spoke to the prosecutor. He is a decent guy, but I also knew he didn’t have a lot of room for plea bargaining, not with the press, boss and probable personal pressure that accompanies a case in which a person is killed, albeit accidentally. I also remembered a time, years ago, when I told this same prosecutor to “go F*&% himself” back when he was a cocky, new prosecutor who thought he could push both my client and myself into a corner. Of course I was a cocky, new Public Defender at the time and probably as much at fault as he was.
But I’d never apologized and rarely said more than a few words to the guy since that day. I hadn’t even thought about that day, but now, worried about my client’s future, I was suddenly afraid that the prosecutor’s wrath might be directed a little toward me even though it would ultimately hit my client. When I talked to him about a “deal” in exchange for a plea, he said all he could do was to remain silent at sentencing. I knew this might make a difference, as some judges put a lot of stock in what the State requested.
I also knew that the judge we drew was the newest District Court judge. This would be his second “MVF” case and he’d given the first person probation. When I hesitated about whether to set the case for trial or a plea, the prosecutor told me that if I set it for trial, he’d amend it to manslaughter, which carried up to twenty years in prison.
Before I told the judge how we wanted to do, I asked him if he could tell me what sort of sentence to expect. Some judges would tell you precisely and some wouldn’t tell you a thing. This judge simply said, “I never reveal what sentence I’ll give.”
I didn’t know which way to go, but had a hunch. My instinct was to trust this judge as he seemed like such a decent person. I’d only been in front of him a few times and he’d always been very cordial, respectful and earnest. I was worried about the effect that prison might have on my clinet, but also worried that a manslaughter conviction would haunt him for life.
I knew that trial would be very difficult as all that was required was proof that my client was driving recklessly and that a person had been killed as a proximate cause of the reckless driving. I could have raised the issue of the seatbelt as an intervening cause, but also knew that my client’s care slid all the way across the divided four lane highway and into the path of the oncoming car. I knew that the witnesses, six or eight of them, described my client driving “extremely fast” and “passing them like they were standing still.” With those facts in mind, I knew reckless would fairly easy for the State to demonstrate.
If my first rule was “do no harm” like a doctor, I didn’t want to increase the sentence by litigating the issue of whether an elderly man without a seatbelt didn’t have his death proximately caused by a car that slid across two lanes and a median and into his path. This seemed to be “overlawyering” and I wondered if such a path would look like fighting to my client but would end up sending him to prison.
So I set the case for a plea. I wrote my client a long letter, sent him to a defensive driving class, and considered contacting the personal injury attorneys who represented the family of the other driver, to see if they wanted to go through mediation or another form of “restorative justice.” I knew this had helped my wife when her mom died after a doctor’s negligent acts and I thought it might help both my client and the family in this case.
But I didn’t call them. When I started to pick up the phone, I was afraid they would see this as a ploy to win them over rather than as a way to heal. I wasn’t sure what part of me wanted to pursue it, if it was the advocate who wanted them to tell the judge to go easy on my client or the human being who knew they were in pain and that perhaps if we all sat down we could reconcile somehow.
The night before the sentencing I stayed up until two. I was worried about Josh going to prison and knew the Presentence Investigation recommended a “straight sentence.” I hoped that that my speech to the judge would keep Josh out of prison as I knew how it would likely effect a now 20-year old kid with only a speeding ticket on his record.
I talked for about ten minutes. Before I started I even introduced Josh to the press, calling them all by first names. I knew they’d likely “melodramatize” whatever was said but thought that if they shook Josh’s hand, perhaps they’d see him not as the thing that leads cause it bleeds, but as a real person with much at stake.
The judge listened intently to me and I choked up once. I thought of the acting teacher’s advice I’d once read who said to “be affected” by what you hear as the judge seemed to be effected by what I was saying. I’d prepared for perhaps seven hours for those seven to ten minutes I spoke as I knew what I said concerned whether a person spent up to five years in a cage or not.
When I was done speaking the prosecutor spoke briefly. True to his word he didn’t recommend a sentence and didn’t push very hard , subtly, for prison.
I felt pretty good, especially since I’d see the previous case result in a sentence of 1-2 years for a 4th offense drunk driving, committed while the guy was on probation for numbers 2 and 3. That case involved a property damage accident and I believed that because only fate determined whether someone lived or died in such accidents that perhaps my recommendation of 76 days in jail upfront, followed by 5 years of probation, would be followed by the judge.
But it wasn’t. Josh was sentenced to 5 to 5. The maximum possible sentence.
I visited him on Thursday and he seemed in good spirits. He’s hoping for facility other than the NSP where the worst criminals go.
