Actual Justice

By: Kevin Friley and Cynthia Vogler, Criminal Justice Clinic Members

Most law schools require students to take courses in criminal law and criminal procedure in order to graduate.  What is not required is clinical experience. Clinical experience develops the actual skills required for lawyering. Criminal law teaches you the elements of common crimes, such as the mens rea and actus reus of crimes.  However, it does not teach you how the details of the incident and the nuances of each situation can change the perception of those elements.  Criminal procedure teaches the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution.   Illegal searches, defective warrants, and failure to advise of Miranda rights are all the red flags we are taught to look for.  While this information is undoubtedly important, the procedural aspect that will most likely help your client is the one you learn in the courtroom, not in the classroom. These applications in the field are something you can learn through clinical experience.

Clinical experience prepares you for lawyering in a way that a classroom cannot.  All of the factors that come into play when you are dealing with real people, real crimes, and real life cannot be replicated in a traditional educational setting.  The fear and anxiety that settles upon you in a courtroom when your client’s fate hangs in the balance is indescribable. Although in the Criminal Justice Clinic, we represent clients charged only with misdemeanors, these crimes can result in jail time, significant costs, and a criminal conviction that could forever damage their career and educational opportunities.

Procedurally, the defense attorney and the client are at the mercy of the prosecutor, who wields a significant amount of power.  The prosecutor decides what charges to bring initially and what charges to dismiss.  The prosecutor also controls the docket, thereby controlling the procedures of the courtroom. In a law school classroom, you are not taught the intricacies and responsibilities of each of these players in the criminal courtroom.

Although criminal law and procedure are essential courses for understanding basic legal concepts, real-world advocacy extends well beyond burdens of proof and the statutory schemes professed in the classroom.  As aforementioned, the roles played by others within the justice system are frequently glossed over in the classroom but are often the keys in successfully resolving cases.  Simply put, the personalities and motivators of the arresting police officer, the prosecutor, and the judge can prove just as important in defending a client as the governing statute or Constitutional provision.

Our first case of the semester had an interesting fact pattern, to say the least.  The client, Joan English,[*] was in her early twenties, unemployed, with a history of minor mental issues.  On the day Ms. English was taken into custody, the police had been dispatched several times.  Ms. English was having one of those days where everything just gets to you.  Everyone has had one of those days, when your friend from high school gets your dream job; your relationship with your boyfriend ends unexpectedly; everything is just going wrong.  That was Ms. English’s day.  She decided to go out for a bicycle ride.  She was weaving in and out of traffic, acting erratically, and several people called the police to report her strange behavior.

Ms. English returned home.  However because of her erratic behavior, the police encouraged her mother to have her committed.  This process involved going to the magistrate’s office and having an involuntary commitment order entered, as Ms. English’s mother felt she was a danger to herself and had no choice.  An involuntary commitment is a civil process as opposed to a criminal one.  In this case, Ms. English was committed to Carolinas Medical Center.  Before her mother could do that, Ms. English left her home again, this time to go to a retail shopping area.  She stole a basket assortment of candies, which she later discarded in the parking lot.  The police were again dispatched regarding Ms. English’s bizarre behavior.

The police officers came upon Ms. English in the retail parking lot and engaged her in conversation.   Ms. English’s mother completed the necessary paperwork at the magistrate’s office and the officers were instructed to pick up Ms. English and deliver her to the local hospital.   Ms. English was told she was not going to jail, but instead going to a mental hospital to get help.  The officers tried to handcuff her and she stiffened up.   Eventually, the officers did get the handcuffs on her and then attempted to put Ms. English in the police car.  Ms. English refused to comply, stiffening her body and resisting being put into the car.  The officers did succeed in getting Ms. English into the car and to the hospital without any injury or further incident.  Ms. English was in the local hospital for eleven days.  She attended therapy sessions that included coping skills and anger management, and was provided medication for her diagnosed mental illness.  Upon her release, Ms. English continued outpatient care and therapy.   Ms. English was arrested after her release for the charges of larceny and resisting a public officer, stemming from the incidents on the day of her commitment to the hospital.

In the English case, the characteristics of the arresting officer and two district attorneys ultimately determined when and how the case was disposed of.  From the outset, the client and her family expressed an understanding that the arresting officer was sympathetic towards her situation. A brief conversation with the officer on the client’s trial date confirmed this.  The officer understood that Ms. English had been experiencing some degree of mental distress at the time of the crime, and that her actions were likely the result of that distress rather than any criminal intent.  In this respect, the officer believed a criminal penalty would not benefit Ms. English.  The officer, without being prompted, stated that he was not opposed to dismissing the case.  When Ms. English’s case was ultimately dismissed, the assistant district attorney (ADA) deferred to the officer before making this decision.

Had this police officer not been compassionate and legitimately concerned with what was best for Ms. English, the case would have proceeded to trial.  The officer could have easily stood his ground and contended that Ms. English’s actions were within the meaning of the relevant statutes and that she should submit to the consequences of her actions.  Instead, the officer was thoughtful and understood what was best for Ms. English.  He wasn’t concerned with which actions were legal and which were illegal, he was concerned with the best outcome for the parties involved.  This is what justice is really about, rather than harsh, indifferent results that can fracture peoples’ lives.

Prosecutors and police officers play a substantial role in when and how a case is disposed, as prosecutors have a great deal of discretion.  How a particular prosecutor chooses to exercise her discretion can influence the outcome of a case far more than a statute or fact.  For instance, some prosecutors are focused primarily on efficiency in an effort to dispose of more cases, and thereby make quick decisions based solely upon the nature of the charge itself.  Others, however, are interested in the smaller details of the crime and are more invested in what outcomes are just.  We were fortunate Ms. English had a thoughtful prosecutor and police officer, both of which led to a just result.  Redefining justice as more than seeking a conviction and exacting a pound of flesh can be the first step in a serious dialogue with communities about the true meaning of justice.

[*] The name has been changed to protect the confidential attorney-client relationship.

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