Broken: A story of hope and forgiveness

by Kevin Mark Smith

  Chapter 17

  Advocate for the Defense

  It had been a relatively simple felony “driving under the influence” charge, but it turned out to be much more. Indeed, after Charles had initially agreed to represent Michael Thomas for a second-time misdemeanor DUI—his grandfather paid the legal fee, promising his troubled grandson that it was the last time he would be the recipient of Grandpa’s largesse—he soon discovered that his new client had been somewhat less than honest with him. It was his fifth DUI lifetime, and his second felony DUI, which entailed much more work, from preliminary hearing to motions to suppress, to jury trial, and they had no choice but to fight it all the way since the district attorney refused to offer any special deals to habitual drunk drivers.

  Charles Fleming, attorney-at-law, sat in a courtroom with his client, Michael Thomas, awaiting the jury’s verdict on the trial that had lasted just two days. He stood up and walked to the back of the courtroom, where the prosecutor and Deputy Brown stood, chatting about the case. “Let’s talk about a plea offer,” Charles said, interrupting what appeared to be a heated conversation, as all had just been called back to court by the judge, indicating that the jury had finished deliberations after just one hour, or perhaps had a question that they needed answered before they could reach a decision.

  The trial had gone relatively well, and Charles knew he had as good a chance as any to secure an acquittal, especially since the jury had returned a verdict so quickly (the shorter the deliberations, the more likely a defense verdict, Charles believed), but his client had a sickening feeling that he would be found guilty, and that the judge would throw the book at him, so he asked Charles to talk to the prosecutor one more time, to see if a deal could be cut before the jury closed all options.

  “I told you already,” Jack Stone, a second-year assistant district attorney in Darkwell County, replied. “No deals. Sorry.”

  “He might walk,” Charles offered. “You know that, right?”

  “Sorry. My boss won’t deal. It’s an election year.”

  You are a weasel, Charles thought, though he was actually grateful at the rebuffed request since acquittals are always better than pleas. Moreover, if he lost he was sure he could talk the old man into paying for an appeal, which would mean thousands more in legal fees. The ADA was short, about 5’4”, skinny, and had pock marks all over his face. Absent the law degree, Charles would have guessed him to be no older than his oldest grandson, whom he was certain could beat the living daylights out of the sniveling punk standing before him. Jack had not prosecuted many cases, a fact Charles knew by instinct. The trial could not have gone better for the defense, a conclusion based in large part on Jack’s incompetence; he could not have made more mistakes without even the most incompetent judge declaring a mistrial, though such a declaration was unlikely to occur at such a hearing and in this particular county. After all, judges there were elected officials, and they didn’t get reelected when they set aside jury verdicts against drunk drivers.

  Charles made the suggestion more out of courtesy than necessity. It was his attempt to build a little goodwill with the prosecutor after he had beaten the tar out of him in court, that and the need to do what his client asked him to do. Relationships, Charles knew, were critical for an effective defense attorney to secure good results for his clients, even if it was for a client who wasn’t in the courtroom that day and hadn’t even hired him yet. So he bit his tongue after Jack refused to deal. After all, the trial had gone well, and he was certain that if they lost, they at least had grounds for a rock-solid appeal, especially if the judge ruled against them on their motion for mistrial, which the judge was considering concurrently with the jury’s own deliberations.

  The issues raised in the trial were numerous, starting with the suppression hearing, which they lost but should have won. At least that’s how Charles felt about it. First, and most important, an officer had not observed any erratic driving or traffic infraction. An anonymous tip had been called in to dispatch about a dark colored, late model American-made sedan. No tag number, make or model number, nor even a specific color, was included in the tip. The generality of the description, combined with Brown jumping the gun and stopping Michael’s car before he violated the law in Brown’s sight, was an issue that had already been directly addressed by the Oklahoma Supreme Court in another case several years before. The stop, Charles was certain, would be found illegal on appeal.

  The other issue concerned the breath test. A videotape made it clear that Michael had requested to speak to his attorney and secure an independent blood test, both requests being denied by Brown. Again, the Supreme Court ruled in another case that such a denial left it no choice but to suppress the results of the test. Charles knew this, in part, because he had already won that very issue at the drivers’ license review hearing, so a similar ruling in the criminal case was likely, as well.

  After waiting for the judge to do a last minute review of relevant cases in his chambers, the court reporter walked in and announced his entry into the courtroom. “All rise,” she announced loudly.

  Charles and Jack walked past the gate separating the spectators from the attorneys and defendants. Each stood next to their chairs at counsel tables, Charles on the left side of the courtroom next to his client, who was standing at his side, and Jack on the right, alone. Brown, who had taken the chair beside Jack for the duration of the trial, remained in the spectator section—those chairs, he believed, were more comfortable.

  Judge Mark Christianson sat in his ultra-large leather chair and pulled it up to his bench, which was elevated a good three feet from the floor where all the others were seated, giving him a bird’s eye view of all he surveyed. “You may be seated.”

  He motioned to his assistant, who stood next to a door behind the jury box. She walked through the door and, moments later, twelve jurors walked in and took their seats.

  “Since hearing arguments on a motion to suppress that the court heard last week and overruled at the time, I found myself questioning my decision throughout this trial. As more and more evidence came to light, I must say that I began to wonder if I had made the wrong decision entirely. Although counsels’ briefs and research were quite voluminous, I did more research as we waited for the jury to deliberate, which it was still doing when I ordered all parties back to court.”

  Charles started to smile. Jack bowed his head, knowing that this could not be good. “After reviewing counsels’ briefs and all relevant case law once again, and hearing facts come from the arresting officer’s mouth that were totally different than what was presented to the court at the suppression hearing, I am disturbed,” he continued. “I am absolutely convinced that Mr. Thomas—“ He paused and looked toward the defendant, scowling, “is guilty as hell. He is facing a second-time felony DUI and is only one tragic incident away from killing himself, which might not be a bad thing, or someone else, a much more unfortunate probability. I emphasize probability because I am firmly convinced that he will kill someone if he continues to drive drunk.”

  Thomas squirmed in his seat, which was growing more uncomfortable by the second. Charles knew they had won. No judge could say such things in front of a jury and not have the verdict overturned, that is, a guilty verdict overturned. He fought the urge to smile broadly, knowing that they were about to win but not wanting to appear unprofessional, to openly gloat. Instead, he gently nudged his client with his left elbow and, when Thomas glanced over at him, winked. His joy was evident in the sparkle in his eyes if not the very slight upward turn in the corners of his lips. Judge Christianson continued, “Unfortunately, I was elected to enforce the law, for good and bad. And I now believe that case law is clear.” He turned his gaze away from Thomas and toward Brown.

  “You screwed up royally, Deputy Brown. And you lied in open court, either this week or last. I have no choice but to reconsider my earlier ruling sua sponte and sustain the defendant’s motion. Does the state have anything further?” the judg
e asked rhetorically, not bothering to look at the prosecutor’s table. Jack knew the standard procedure when a hearing resulted in all evidence disappearing with the slam of a gavel, though he was less certain when a motion ruling was reversed after a trial.

  He sat in his chair clueless, saying nothing.

  “Counsel?” the judge demanded, now glaring at Jack and growing impatient as seconds ticked away.

  Charles saw the opportunity to help him save face. “Your Honor,” he said. “Defense moves the court to find the defendant not guilty for failure of the state to carry its burden.” And acquittal was much better than just a dismissal, especially if the state wanted to be a pain in the rear for the defense and refile charges.

  Jack glanced back at Brown and scowled. He then stood. “The state objects.”

  “State’s objection is noted and overruled,” the Judge said. “Defense motion sustained.” He turned toward the defendant. “Don’t let me see you in my courtroom again.”

  “Yes sir, Your Honor.”

  The Judge then proceeded to apologize to the jurors for the state’s regrettable waste of their time. It was one of a long list of sheriff’s department blunders that would eventually result in changes in the department, including Anderson’s appointment as sheriff, as well as the election of a new district attorney.

  Reflecting on the first case of Michael Thomas as he sat in the middle of the sidewalk sobbing profusely with Max on one side and Nolan on the other, both doing their best to comfort him for some reason neither knew a thing about, Charles felt as if his entire life had been a lie. He claimed to be a Christian yet his actions had caused his grandson and his entire family more pain than he could possibly imagine, or they would ever understand. He had gotten his client off and now that very same client had almost killed his beloved grandson and ripped away any chance Robert had of realizing his dream of a college baseball career, and maybe more. Though that possibility was not certain, his heart told him it would not have happened but for his defense of a scumbag.

  What next? He thought. How do I tell them what I’ve done, that I’m responsible?

  Max and Nolan helped him to his feet and they walked to the car, both unwilling to be the first to ask the question they were dying to know the answer to: What did you see in that file? The answer would come soon enough, and Charles prayed silently that they would give him some reason to justify his role as criminal defense attorney, which had been the biggest part of his life the past thirty-or-so years.

  He couldn’t help thinking: How many others have I killed? How do I tell Jessie and Robert what I’ve done?