by Daniel DeWoskin
As a member of the Bar, I often reflect on the different responsibilities I have to my clients, my colleagues, the court, opposing counsel, other parties, and the public. Depending on the case my role and my responsibilities may change, but there is almost always a “little picture” and a “big picture” to consider. A recent experience highlighted this for me in a rather unfortunate situation.
My client was a 19-year-old South American who had overstayed his visa and was no longer legally residing in the United States. He and some friends were caught shoplifting from a Wal-Mart before Thanksgiving, around November 17. I believe the items he was stealing had a value of less than $20. Scared of what would happen to him, my client gave a false name and date of birth, but his lie was revealed within an hour or two. Thus, my client was now charged with not only a misdemeanor shoplifting, but also a felony charge for giving false information.
On top of these charges, ICE (Immigration and Customs Enforcement) had placed a hold on my client at the jail, meaning he would only be released into ICE custody so that the deportation process could commence. My client and his family were focused on getting him through the state charges as expeditiously as possible so that he could be deported to his country and put all this behind him.
I got to work quickly and waived preliminary hearings, doing everything I could and making any call I could make to get him before a court where he could plead to the misdemeanor and resolve the case. I had figured that the State would be willing to dismiss the felony charge given the fact that there was no real criminal history to speak of and the facts did not warrant the cost of an extended prosecution.
I figured correctly. When the matter was finally accused, which was sometime in late December, the assistant district attorney was perfectly willing to dismiss the felony and offer a probated sentence for the misdemeanor. We both acknowledged that my client would likely not have the opportunity to complete his sentence as he would not be challenging his deportation and would be taken from the county jail he was in to ICE detention.
This should have been the end of the story. Instead, when my client finally got to court for arraignment on Jan. 6, 2012, the assistant district attorney announced that the felony would be nolle prossed and they would only proceed on the misdemeanor. The Superior Court judge then advised that since this was now only a misdemeanor case, she would not hear the plea and the matter would have to be sent back to State Court. I was crestfallen. I had fielded daily phone calls (yes, daily phone calls) from my client’s concerned mother asking about when he would get to court, what the consequences would be, and how we could make the process move as quickly as possible. Now, we were finally in court and the judge would not hear the plea because, in her words, she did not want to do someone else’s work.