“You didn’t do them any favors.”

Prelude: This will be a post in two parts. This is the first part. I hope I have the courage to write the second. If I do, the second part will appear on December 26.

_______

Mark was the son of a very good client of our three-man law firm. He was tall, blond, blue-eyed, and built like Adonis, the demigod of beauty and desire in Greek mythology. Despite his good looks, trouble seemed to find him no matter where he went. I suppose I got the job of bailing Mark out of his scrapes because I was not much older than he was and my senior partner probably assumed that I could talk some sense into him. That–the sense part–I was never able to accomplish, but we did get along very well. Mark was smart and shared my sense of humor. But there was also a darkness in Mark that began to show itself with frightening frequency the older Mark became.

Mark had been at the Blue Lounge all night. He stayed until closing, and then offered the pretty mother of two, who was supporting herself tending bar, a ride home. While on the way home, he forced the woman to perform oral sex in the front seat of his souped up Camaro. I know that because the day after the assault, her prompt report to the police and Mark’s arrest, I interviewed the young woman at her small, ratty trailer. Our office manager came with me as a witness, and recorded the conversation on one of those fancy new cassette recorders that were all the rage. I was dismayed. The tender of the bar at the Blue Lounge was entirely credible and, worse yet, demure and most likeable.

It was clear to me that Mark had crossed a line. The assault could not be explained by the drugs he took or the alcohol he consumed. Mark was a lot things, but not this. Something dramatic had happened to Mark.

My conversations with Mark at Big John’s jail confirmed my suspicions. Mark was almost incoherent with rantings. With that, I hired Dr. Jim Cole, an eminent clinical psychologist from the University of Nebraska with tons of forensic experience. He agreed to take the case on one condition. I had to let his doctoral students do the testing, although Jim would do the clinical interviews and review the testing results.

Jim and I became friends. He taught me a lot including my first introduction to the Diagnostic and Statistical Manual of Mental Disorders. Jim liked to call me compulsive. The first time he did, I laughed and asked him what that meant. He told me to look it up. I said I would. He said he knew that.

After two days of testing and clinical interviews, Jim told me what he thought. He said Mark was truly and seriously mentally ill and plainly still suffering from a long-standing addiction to hard drugs. The two in combination likely suppressed a very superior intellect. He added that he thought Mark was dangerous but treatable. And that’s when an idea began to form, although it did not spring fully to life until after Mark escaped.

On Sundays, Big John’s jail, on the second floor of the cinder block building across from the courthouse, was attended by only one jailor. He was a small, young man with a cleft palate. When he gave Mark a bucket and mop to clean his cell, Mark grabbed him around the neck through the bars and stuck a “knife” (fashioned out of some pencils and aluminium foil taken from a TV dinner) against the man’s jugular. Mark grabbed the keys, unlocked and opened the door, shoved the jailor into the cell and was gone.

Mark’s father came to the office and we talked. He said that he thought Mark would go to the large and beautiful family home out in the country. No one else was home. Mark was likely to hide in an unfinished loft area behind a small door built to blend into the panelled wall in an upstairs recreation room. Mark’s dad was justifiably worried. The highway patrol air wing was out searching for Mark’s Camaro, and the county was abuzz with all manner of cops with guns at the ready. As you might imagine, Mark was not a favorite of the constabulary. Anyway, Mark’s dad and I decided that I should drive out to the home, and talk Mark into turning himself in.

When I got to the home that sat in a secluded but beautiful spot near a sand pit lake, I walked in and called for Mark. Pretty soon Mark appeared. He was standing above me on the second floor that overlooked the main floor. Mark held a shotgun. We talked for a moment, and he allowed me to come up. We went into the hidden loft and Mark closed the door. Mark was swilling bourbon out of a bottle and was gulping Darvon from a pill bottle he must have found in his parent’s bathroom. He was wild-eyed.

Mark was adamant that he would not surrender. I reminded him of the slight jailor with the cleft palate. I made a horrible joke about the jailor and mimicked his tortured speech. I informed Mark that the jailor had told the Sheriff that he didn’t resist Mark’s escape because he “wasn’t goin’ be no fuckin’ heroo.” As I said those words, and to my shame, I mimicked, as best I could, the poor man’s speech defect. That made Mark laugh, and it broke the tension.

We talked about how “funny” it would be for Mark to return and confront the little guy the following Sunday when the fellow patrolled the jail once again. That seemed to tickle Mark’s fancy. Finally, after several hours and a long aimless drive around the county while Mark held a butcher knife, Mark allowed me to drive him back to town. With guns drawn, our car was stopped by the police just short of the jail. Mark was safe and back in custody.

When I told Jim Cole of these events, he reiterated how truly sick Mark was and how desperately Mark needed hospitalization. It was then that my earlier germ of an idea began to take shape.

Mike was the prosecutor. He was (and is) a very good lawyer and terribly decent man. With Mark’s escape, and the slam dunk conviction that would surely follow from a trial on the escape charges, we had only one slight bit of leverage. While the State could easily prosecute the escape, the sexual assault matter would have been more challenging. Moreover, it would have required the victim to testify and, even though she was credible, we could certainly do a variety of things to make her life miserable on the witness stand. It was this tiny bit of “hard ball” reality that ultimately convinced Mike to go along with my scheme.

Jim Cole had located an inpatient, locked ward, psychiatric hospital in Dallas. It was a very good one, but also terribly expensive. I talked Mark’s parents into footing the bill if I could get Mark into the hospital. So, I proposed to Mike, the prosecutor, the following deal: (1) Mark would admit the assault and the escape in a sworn deposition that I would take so as to avoid any possibility that the confession would be found involuntary; (2) Mike would defer Mark’s trial for as long as Mark remained behind the walls of the nut house getting treatment; and (3) immediately after Mark was discharged, he would enter his guilty plea and be sentenced. Mike agreed to the deal in concept, but only if he was satisfied that the hospital was secure. That seemed entirely reasonable, and so one morning Mike, Jim Cole and I flew to Dallas.

When we got to Dallas, Jim Cole and the head psychiatrist went over Mark’s medical and mental health records in detail. Although originally satisfied that they could treat Mark, the more the Dallas doctor reviewed the records and talked to Jim the more he became unsure. Finally, he told us that Mark was simply too dangerous and too sick for his hospital to treat. I was crushed.

The Dallas doctor did have a suggestion. He had called a colleague in New Orleans at another very expensive psychiatric hospital (River Oaks, I think) and if we could get to New Orleans that day a very experienced psychiatrist would see us and possibly consider taking Mark as a patient in the their secure facility. So, off to New Orleans we went.

We met the New Orleans shrink in his darkly panelled office. The doctor wore a white linen suit. The collected works of Sigmund Freud were prominently displayed in the book shelves behind the doctor’s beautiful desk. Incongruously, the doctor had thumb tacked a photo of Freud to the bottom shelf.

The doc had all the credentials and then some. He was willing to take Mark, and we were shown the locked ward. Mike was satisfied, and arrangements were made to get Mark to the hospital. We took Mark’s deposition, had it transcribed, and gave it to Mike. We told the judge (Keith Windrum) that trial would be delayed. He wasn’t happy, but there was nothing he could do.

As Mark headed to New Orleans, my late wife said something to me that I will never forget. I was sort of bragging to her about how things were working out, when she said, “Rich, I don’t think you have done them any favors.” She added that she thought Mark would surely break his parent’s heart and do something to screw up the deal after costing them tons of money.

About six months after Mark’s treatment began, he was beginning to make significant progress. As Jim Cole predicted, IQ testing showed that Mark now scored in the superior range and the therapists were certain that Mark’s mental illness was treatable and controllable. But, as Mark neared his one year  anniversary at the hospital, and the likelihood that he would be discharged relatively soon only to return to Nebraska to face a certain prison sentence, the old darkness returned.

Somehow, Mark got out of the hospital and dove into the nether regions of New Orleans. A FBI swat team ultimately found him. Mark returned to Nebraska, was sentenced and sent to the Nebraska prison that housed the tough guys.

In the end, my wife was right. In my egotistical compulsion to remake the world and then control it, I didn’t do my clients any favors. I regret that still.

RGK

24 responses

  1. I’ve recently began subscribing to your blog-I’ve never responded before. I’ll say up front that I’m a licensed clinical alcohol and drug counselor, a licensed PI, a sentencig consultant and mitigation expert on capital cases-have been for over 30 years. That said, I really beg to differ on your last few sentences of this post. In a nutshell this is my different perspective: Thank goodness Mark and Jim had you to help them when you did. Put aside all the discussion that could occur about the wealthy getting “breaks” in the criminal justice sytem-you helped this young man and his family, friends/colleagues of yours through a very rough time. You offered hope, treatment, a mitigated sentence that was VERY defendant specific and a year of good, expensive treatment. You’ll never know if/when a message Mark heard during his experience will sink in and promote true healing. There are countless stories at self-help meetings of people whom had MANY “failed” treatments but are back to working the program today. I don’t see your advocatiang for this man as acting egotistical in any way. You have demonstrated through the blogs that I’ve seen over the last month to be truly open minded and genuine-somethig that gives me hope in my profession, where I’ve met judges who automatically dismiss my reports or minimize the role of mitgating circumstances. Mitigation helps the court “walk” in the defendants shoes. Please don’t regret your advocacy for this young man. His parents pocketbook might be the only thing worse by the expereince

  2. Carol,

    Your point is an important one. For young lawyers, however, I think it also important that they realize that heroic efforts on behalf of their clients can backfire. It is very important that as think they about novel or extraordinary ways of helping clients that they also remember to “first do no harm.”

    I don’t regret representing Mark. Indeed, I came to think of him as a friend. What I do regret is being less clear with everyone (including myself) about how everyone would feel if things went south. It was their risk to take, not mine. In order to assess that risk, I think I should have been more clear about the real possibility that things would not work out the way I had planned.

    Finally, I entirely agree with you that Mark probably benefited from his time in the hospital. In fact, that figures into the second part of this post, assuming I ever write it.

    All the best.

    RGK

  3. quite a powerful story – possible dumb question but did he eventually get any help or was he housed indefinitely? thanks!

  4. I believe you demonstrated incredible zealousness on behalf of your client, Mark. Your role was not a social worker to do what was best for him but to advocate to the best of your abilities and you came up with a creative plan that not 1 in 1000 defense lawyers would have thought of. You actually did you client a huge “favor” — but he looked a gift horse in the mouth so to speak. Your sole obligation was to attempt to minimize Mark’s sentence not do what was best for his parents or society. Doing anything less would have made you a walking violation of the 6th Amendment. What a powerfully written story. You did no harm to Mark — he did it to himself. Your concern for Mark – is the same passion for justice you have delivered to thousands of civil litigants and criminal defendants.and to the U.S. It’s why this small town country Nebraska lawyer is one of the finest federal trial court judges in the Naton!

  5. I second the remarks of Judge Bennett and Counselor Krych. You did what you could do as the man’s lawyer. It’s not your fault he threw that opportunity away.

    Pause the second-guessing for a bit, and think about what you knew in real time–not what you learned later.

    As to what you did wrong, maybe there was a measure of youthful hubris over the creativity and apparent success of your solution, but not much else. There are worse crimes for a lawyer, or a judge, to commit.

    Eric Hines

  6. Mark,

    Oh, my! Such florid praise for a perfectly unworthy soul. Thank you my friend for the gross hyperbole.

    All the best.

    RGK

  7. Jevon,

    I don’t want to answer that question now. As I said, this is a two part story. Hint: It ends very badly for both of us. All the best.

    RGK

  8. Eric,

    Thank you. But the point of the story is a cautionary tale for young lawyers. When you become as invested in a client as I was with Mark, perspective is the first thing to fly out the window. Maybe I would have done the same thing had I maintained a perspective, but, the fact is, that I didn’t. That, as they say, is the problem.

    All the best.

    RGK

  9. Last para. You weren’t old enough to know better and as others have written, you did your best. Sometimes, clients can’t or won’t be helped. That is not your fault.

  10. What’s your alternative, then? What perspective should you have maintained?

    And what are the recognition keys that a young lawyer should take from this cautionary tale that will let them recognize–in real time, if not in advance–what, if anything, they should be doing differently?

    In what way is it possible to become invested in a client, as a lawyer must in order to do an optimal job of advising and representing him, that’s different from the investment that you think you did erroneously–or too zealously?–with this one?

    Eric Hines

  11. Eric,

    A young lawyer should ask himself or herself this basic question: What are all the downsides (and upsides) of my novel idea?

    Then, the young lawyer should clearly inform his or her client of the downsides (and upsides) in very stark terms. For example, had I said to Mark’s parents and Mark, “How are you going to feel if the treatment program does not work for some reason, tens of thousands of dollars have been spent, and the sentencing judge decides to give Mark precisely the same sentence he would have gotten had Mark simply elected to take his medicine or, even worse, the sentencing judge sentences Mark more harshly because the treatment program was not successful?”

    So, my failure was, at least, not being brutally frank with myself and then my clients. Instead, I did what some surgeons do. Because I thought I knew better than everyone else, I outlined my plan of action, vaguely thought about and then minimized the risk, and convinced my clients to follow my advice. I acted very much like a parent would act with a child, except my clients were, obviously, not children.

    All the best.

    RGK

    PS By the way, I was aware of the ethical pitfalls of representing one person when someone else was paying the bills. I made the required disclosures and secured the waivers required under the then applicable ethical norms in Nebraska. So, we aren’t talking about ethics but rather my judgment.

  12. I can see why such advice is helpful to the newly minted attorney – it is very easy to let enthusiasm for a novel approach blind us to the possible (or even likely) consequences.

    One of the many things I have come to admire about legal professionals is their blunt honesty, especially with hard truths that many people would rather dissemble around than mention (much less baldly discuss). Thanks for sharing how hard it can be to learn that forthrightness.

  13. Thank you judge for taking the time to respond. I’d like to also say, “Pardon me if this sounds presumptuous” but the conflict between roles that the judge is warning young laywers about is exactly why the additional lesson learned could be to obtain the services of a forensic social worker or mitigation specialist. The special training/experience which allows my ability to weigh the many needs of the defendant and his family, the court, the victim, and society helps answer this exact dilemma. Many new (or experienced) defense attorneys are unfamiliar with this type of service. Granted, budgets and time constraints can limit access to experts in criminal defense work yet it often surprises those that I consult with how useful and productive my “set of glasses” can be for their case.

  14. Carol,

    Your comment is not presumptuous. By the way, in the 1970s, forensic social workers or mitigation specialists were not available in the part of the country (and I do mean country in the sense that country music singers use the word) where I practiced law. In any event, your suggestion is a good one. Young and old lawyers alike should recognize that there are now specialized services available to them that can benefit their clients while assuring the lawyer has an objective specialist helping the lawyer give objective advice on matters about which lawyers receive no training.

    All the best.

    RGK

  15. Thank you for writing this. I am a junior public defender, and I really feel like this is directed to folks like me (as your comments make clear).

  16. Mathew,

    You are most welcome. However, be sure take all “war stories” from old men with a grain of salt, and come to your own conclusions.

    All the best.

    RGK

  17. Judge, I must say you have a second career ahead of you as a writer after you are done with this law thing. Riveting writing. I think anyone who reads this must feel compassion for the young attorney trying so hard to help. I suspect all of us have tales in a similar vein from a time when we were starting out. Many of us learn it is not possible to help someone who does not wish help. For my own, this has come to mean I help those who ask and don’t bother with those who don’t.

    I must say I am looking forward to reading the second installment, a post Christmas present if you will.

  18. Bill,

    Thanks for your very nice comment. Truly, it made me feel good, and not much in this business allows me to feel that way anymore.

    The second post will be excruciating to write. It is very personal. We shall see if I can summon the will to write it.

    All the best.

    RGK

  19. Pingback: December 26, 1986 « Hercules and the umpire.

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