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Practice Corner: Thoughts on Our Responsibilities as Attorneys

by Daniel DeWoskin
Trial Attorney

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.

I will say that the judge was very polite to me and did me the courtesy of saying that this was not my error, but that we would have to sit back and wait for the Solicitor and the State Court to handle the matter. My client and his family were devastated, so much so that my client’s mother insisted that he plead to the felony and get this matter resolved then and there. The client agreed with his mother and wanted to plead to a felony charge against the advice of counsel just to get to ICE and be deported.

I updated the prosecutor and the judge, who were surprised, but reluctantly agreed to accommodate my client’s request. I explained that I would have to make a rather clear record of my misgivings with my client’s decision given the State’s agreement to dismiss the felony, but that this was his decision to make. During the very last moments of the proceeding the judge agreed to allow my client to plead to only the misdemeanor and sentenced him to a probated sentence to be suspended upon his deportation.

Despite what I think was the right decision happened at the last minute, the way the court handled this case bothered me as an attorney and as a taxpayer. I am proud to say that this case was not in DeKalb County. This case was in another county with an overcrowded jail. The judge’s refusal to do somebody else’s work, as she put it, meant that my client would sit in jail for another few weeks at taxpayer expense. My client would be in jail not because of concerns of protecting the public or even for punitive considerations. Bear in mind that if he had legal status in this country he would have simply bonded out and likely been sentenced to 12 months’ probation with special conditions.

As an elected official, I struggled to imagine how the taxpayers of the county would have viewed the situation had they been in the courtroom that day. Surely, even the staunchest advocate of tougher sentences would not want to pay the expenses for my client’s housing in light of the federal government’s imminent action to deport him. The pettiness of the judge here, which came as no surprise to the assistant district attorney, was astounding to me. In fact, the assistant district attorney agreed with me privately that if she were so inclined to dismiss all the charges due to the Court’s refusal to take the plea, the judge would likely have been antagonized and resented the decision of the prosecutor.

I understand that the system is clogged, resources are limited, and tensions run high for everyone, judges included. However, instead of viewing this particular case with an eye toward alleviating the trouble, the judge I was before had lost sight completely of the obligations she has as a judge, as an attorney, and as an elected official. There was absolutely no good reason for the damage that would have been caused by her refusal to hear a plea to a misdemeanor or a reduced charge.

As attorneys, we have many obligations. Some, such as those due to our clients, may supersede all others with few exceptions. Judges do not owe the same duties of confidentiality and loyalty, but their obligations to the law, to the public, and to the community demand that they avoid the sort of stubbornness that my client faced in his case. As frustrated as I was, I was relieved that I do not live and pay taxes in that particular jurisdiction.

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