The birthday chicken

She was my first real client.  In her late sixties, she stood about six feet tall and was dressed in work pants and a work shirt.  On her large feet, she wore polished leather work boots.  I remember her hands were big and powerful.  Her face was deeply tanned.  Her hair was short.  Her eyes were deep blue and, even indoors, she squinted as if she spent most of her time in the sun.  Well-spoken, she had an aura of quiet authority befitting an owner of several irrigated farms.

After the Clerk of the local court had called to say that I had been appointed to represent the woman before the Dawson County Mental Health Board, I took a quick look at the statutes.  The County Attorney would have to establish that she was a danger to herself or others before the Board could commit her to the Hastings Regional Center.  I walked briskly over to the Sheriff’s office to confer with the woman.  The time was short, I had only an hour or so to prepare.

I interviewed her in the Sheriff’s inner office.  She sat at an oak table and I sat across from her.  On the wall of his office, the Sheriff, Big John, had a peg board on which he displayed knives, guns and other tools of mayhem that he had come across in his work.  That made me slightly nervous, but Big John told me my client was nice woman.

She was clearly oriented to time, place and person.  I asked her why they picked her up. She told me that she had been married for the first time several years back to a much older man who was in his 80s.  His son did not like her, and the man kidnapped her husband and took the old man to the son’s home.  While it was true that she had parked a hatchet in the front door of the son’s home when they refused to let her in, she did so only to get their attention and then only to rescue her beloved husband.

The story was strange, but not crazy.  I told her to leave it to me.  We went into the hearing room–actually a conference room with another big oak table where the Board sat.  The County Attorney was there, with the son.  The Board consisted of a lawyer, a doctor, and the Clerk.  After I told the Board that we contested the State’s request to commit, the hearing began.  I made sure the woman had a legal pad and a pen to write me notes.

After the County Attorney got done, I was pretty hopeful.  The son told a story that pretty much matched the story of my client.  It was my turn to ask questions. After I had asked a few warm-ups, the woman began to get agitated. She whispered to me, “Ask him about the birthday chicken.”  I ignored the suggestion.  Then, out loud, and insistently, she ordered:  “He stole my birthday chicken. Ask him about my birthday chicken!”  And, so I did.

It was summer.  Hot, very  hot.  You simply don’t know heat until you experience high plains heat. The son said he worried for his father.  The woman and the old man liked to drive around the woman’s farms in the middle of the day.  They drove her old Ford.  One day, the son came upon the woman and the son’s father on a gravel road.  They were parked across from one of her farms.  They were watching the tenant run the center pivot sprinkler.

In the back of the old Ford was a plucked chicken, and it was rotting.  It stunk to high heavens.  When the son inquired about the chicken, the woman replied happily that they were going to cook and eat the chicken that night in celebration of her 69th birthday.  The woman’s husband, the old man, just grinned.  Anyway, it was later that day that the son drove out to the woman’s place, and removed the carcass of the decaying bird from the old Ford. After that, he snatched his father and took him to the son’s home. That’s when the woman came calling with her hatchet.

The Board quickly voted to commit.  As Big John walked my client out to his Crown Victoria for the ride to the Regional Center, I gave her my brand new professional card.  It was the good kind.  When you ran your fingers over the card you could feel the raised lettering.   It said that I was an attorney-at-law.

I assured the woman I would appeal if directed to do so.  She took the card, and put it in her hip pocket.  She looked at me, and said, “You’re a knuckle-head.”  That’s the last time I saw her.

Some months later, I learned that the Regional Center had stabilized the woman.  After that, she was released with a prescription.   She returned to her home.  The old man, her husband, was gone.  Off to a care home, but she didn’t know where.

Soon thereafter, she took a 12-gauge, and blew her brains out.  My professional card continued to say that I was an attorney-at-law, but I was not so sure.

RGK

Judge Gertner on FISA court

Now retired from her position as United States District Judge in Massachusetts, Nancy Gertner, a law teacher at Harvard, has a fascinating take on the FISA court. See Judge Gertner’s views here.

I know, like and have great respect for Judge Gertner.  While our views are frequently quite different, what she has to say is always worth reading.  If nothing else, she is a plain-spoken realist.

RGK

A clarification and an apology

I recently posted a very brief piece entitled Balance.   It suggested reading a newspaper article about a horrific rape of a little girl.  Buried in the article were the facts that the offender had recently been sentenced to 20 years in federal prison for child pornography and the state sentencing judge ran his sentences consecutive to the child pornography sentence.

A thoughtful commentator read my post and the article.  He then submitted the following comment:

With all due respect, this post is utter nonsense. You start by talking about sentencing in federal child pornography prosecutions, and then you link to a story about a brutal kidnapping and rape, as if the connection between the two is self-evident.

Let me give you a different hypothetical. Imagine a similar kidnapping in which the child was tortured and ultimately murdered, but not raped or otherwise sexually abused. How should thinking about this crime affect a judge who is sentencing a defendant convicted of possessing photographs of someone being (non-sexually) tortured and murdered? Oh, wait — no such prosecution would occur, because it’s not illegal to possess photos of someone being tortured or murdered — never mind.

Okay, now let’s turn it around. Imagine a parent giving a bath to a two-year-old child — a completely innocent, commonplace event characterized by smiles and laughter. Now imagine a defendant convicted of possession of numerous videos of parents bathing small children. How should your awareness of the first scenario affect your sentencing for the second?

Sometimes the possession of photos or video is perfectly legal even when the acts captured are highly criminal. Other times, possession of photos or video is criminalized even when it depicts perfectly legal acts. The point is, the two are not the same. The harms of each need to be considered and evaluated independently.

Okay, so let’s think about the specific example you linked to in this post. Clearly, Abraham Richardson is an evil and despicable person, deserving of severe criminal punishment. But how does this story relate to child pornography? One argument sometimes made for laws against possession of child pornography is that the market demand for child pornography creates an incentive for producers to create more, thus victimizing more children. But there is absolutely nothing in the linked story to suggest that anything he did was motivated by a desire to feed the market for child pornography. So what’s the relevance?

Your meaning is not entirely transparent, but you seem to be saying: Judges have to sentence defendants convicted of crime X. Horrific crime Y angers and disgusts me. Crime X and crime Y are superficially related. Therefore, judges should reject calls for leniency in sentencing for crime X. I hope I’m misinterpreting you, because, frankly, I expect better from a federal judge.

In response, I agreed with the commentator that my post was not clear.  I agreed to provide a clarification, and so here it is.

I was the sentencing judge in the child pornography case.   I imposed the maximum sentence permitted by statute (20 years plus a lifetime of supervision).  The Guidelines were far in excess of that but they were capped by the statutory maximum.

At the time of sentencing, I was aware of the rape charge, and the horrific facts associated with it.  However, since the offender had not yet been convicted, I could not properly use the facts of the alleged rape for sentencing purposes.   And, I did not.

Earlier I written a fairly long post about the need for sentencing judges to have balance.  In particular, and among other things, I wrote that without balance that judge can turn into an avenging angel, that is:

You begin to suppress the anger that naturally flows from the horrific crimes you are forced to study.  Unless you struggle mightily to resist, you will then allow that anger to boil up to the point of an inner rage.  That rage in turn fuels a righteous indignation that, metaphorically speaking, permits you to sentence Satan while thinking of yourself as the Archangel Michael.

So here’s the deal, the federal child porn prosecution that formed the basis for my brief and fairly criticized post–the horror of the images that were the basis for the prosecution to the fear that the perpetrator had the desire and willingness to harm little children–seared the soul. In truth, the case enraged me.  More importantly, it terrified me, particularly when I thought of my grand-daughter.   It is these types of cases that illustrate the need for balance that I wrote about earlier.

I am sorry that I was opaque.  I apologize.

RGK

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