Saturday, July 15, 2023

Think you could never be arrested? Oh, so wrong.

One thing that has really surprised me as a defense lawyer is the number of "normal" people who get arrested.

Let me back up a moment - yes, there are many people in the criminal justice system who are dropped into it (often by their own actions) and never get out. Their criminal histories are pages long, and any damage to their reputations or job opportunities has long since happened.

In fact, in some ways these cases are (I imagine) easier to handle, because another misdemeanor plea doesn't change the trajectory of that person's life much. 

At Cofer & Connelly, where I work, we see very few of these folks indeed because we are lucky enough to be in a position where we don't need to take cases appointed to us by the courts (a whole other issue: how terrible the pay is for lawyers taking appointed cases).

So what does that mean? It means the vast majority of our clients have never been in trouble before.

I recently took a call from a prospective client who'd been arrested for a misdemeanor crime. He freely admitted to me that, before his arrest, he'd not cared much for the movement to improve jails and prisons. "You do bad," he said, "then you go to a bad place."

And then it happened to him. He spent two nights in the Travis County jail, where he said the guards treated the inmates like animals, where there was feces on the floor and walls, and where he saw literal rats running around. He was horrified, traumatized even, by that experience.

For his case, his main concern was that he never go back there, no matter the outcome, he could not go back. Fortunately, his alleged offense was such that I was able to give him a large degree of comfort that he would remain in the free.

The thing is, it doesn't take much to land a formerly law-abiding citizen behind bars. I had this conversation with my teenage son recently, because I wanted him to understand that actual innocence was no barrier to jail.

"But if I do nothing wrong, how can that be?" he insisted.

I sighed, because he's right. That's how it should be. And as a prosecutor the truth mattered more to me than almost anything. But as a defense lawyer, the truth doesn't enter the equation until long after you've been handcuff, stuffed into a police car, stripped naked at the jail, and sat in a cold, lonely (if you're lucky) cell in jail scrubs, fed undercooked fake chicken and baloney sandwiches.

"If someone tells a cop you hit them, or touched them without consent," I said. "You will go to jail."

"Even if I didn't?"


And that's the truth, as I'm seeing it. The fact is, and people will not like to hear this, but people call the police too often because they can't handle the situation they are in. They can't control it. And the way they reestablish control is to have the person they are in conflict with, they are angry with, arrested.

I realize that as a felony prosecutor I didn't get to witness this phenomenon, because it does mostly happen with allegations of assault, which is a misdemeanor. Or, in one case we got dismissed for a client, an allegation that she stole a dog. What she'd done was rescue a dog abandoned and abused by her ex, and when he saw how happy they were together he filed a theft complaint.

Yes, it's that easy.

So what's my point here? Maybe it's just to bring awareness where I can, to let people know that the criminal justice system is closer than they imagine. And, relatedly, to consider showing more empathy to those caught up in it. 

Because not all of them are guilty. 

Not by a long shot.

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