Wednesday, January 23, 2013

The BIG BOOM or Another Really True Law Story

Several years ago I was retained to represent a 30-year-old man, who was charged initially with child molesting.  The unfortunate facts of the case were that when the “victim” was about fifteen and my client was about twenty-eight, they began having secret, frequent, mutually-consenting, rip-roaringly good sex.  Notice that I did not say the sex was legal, as it clearly was not.  But make no mistake about it, this young honey had been ridden hard and put up wet (a classic Kentucky euphemism) more than a few times by others than my client.  A “victim” she was not.

Her momma was politically active in a minor sort of way in my hometown and embarrassed by the circumstances. My perception was that she had her eye on higher office and was fearful that her daughter’s activities would become the subject of common gossip. The situation was worsened as her daughter did not want her boyfriend prosecuted.  But mom would not walk away, even when the prosecutor counseled her that a trial would be embarrassing for her daughter,  who had threatened to refuse to testify, thereby destroying the State’s case.  Mom wouldn’t budge. Mom was gambling that my client would not want to go to trial. So the scene was set for a potential courtroom battle.

The state of molest law in Indiana at the time was much the same as it is now.  If the young lady or boy is sixteen or older, each are fair game.  Younger than that and you are “poaching.”  As I used to explain to my clients, “I do not care if she greets you at the door stark naked and suggests you retire to the bedroom immediately as her parents are not at home, if she isn’t sixteen, she is not fair game.”  The only exception is if the defendant reasonably believed the girl to be sixteen (always ask to see the driver’s license) and that she told him she was.  Unfortunately, this possible defense did not have any basis in fact in the case.
Further complicating the matter was that my client was a buck sergeant in the 101st Airborne at Ft. Campbell.  He had been trained as a combat medic in the infantry.  Apparently, he had done well as the army had sent him back to school on their dime to get his R.N. certification and an associate’s degree, which he had just completed.  This would serve to promote him to the commissioned officer rank of second lieutenant.  However, the army was not going to commission him as an officer if he was convicted of a felony, even if he somehow could escape the inevitable jail time a conviction would require.  Worse, the army would certainly give him a dishonorable discharge if convicted of anything that was a felony. 

My client was in deep trouble and knew it.  But unlike most of my criminal clients, his attitude was different.  He told me, “Mike, I know I screwed up really bad.  I knew what I was doing was wrong, but I didn’t think anyone would get hurt.  I know I am guilty.  Just do the best you can for me.  I know you don’t have much to work with.”  How refreshing.  The very rare, realistic client.
Responding, I told him that each case was different and that even the most hopeless of cases oftentimes presented an unforeseen opportunity to help a client.  I told him not to give up hope, as you never knew what would happen while a case was going through the system.

I will not bore you with the machinations of the criminal justice system’s internal workings in this case.  But I will summarize the positions of the major players.  First, Mom was still out for blood, mostly I suspected, because of the embarrassment to her family the trial was going to cause and her incorrect assumption that the case would never go to trial.  Daughter was mad at Mom, because she thought she had found “true love.” However illegal it may have been at the inception, it was now perfectly legal, since she was now sixteen.  The prosecutor, a veteran of many of these cases, wanted to plea bargain the matter to get rid of it, as it was not the best of cases, since the girl was uncooperative.  But he was jammed up dealing with the angry mom.  My client was resigned to being labeled as a molester, being dishonorably discharged from the army, being unable to practice his profession, and to doing a substantial amount of prison time.  Me, I was desperately and unsuccessfully trying to figure a way for my client to get out of what seemed to me to be an inevitable felony conviction.  No one was happy, that was for sure.

After much time had passed and everyone had time to calm down, the prosecutor and I worked out a deal where the prosecutor would trash the molest charge, if my client would plead guilty to “improperconduct with a minor.”  The new charge was still a felony, but a lesser one, that did not necessarily denote intercourse.  My client advised that he would likely still get bounced from the army, but it would not be with a dishonorable discharge.  It would be with a “less than honorable” discharge.  Not good, but better.  Everybody was still upset, but apparently, everyone could deal with the terms of the deal.
I advised the court that a plea agreement had been reached and that a plea hearing needed to be set, which the court quickly did, before one or more of the parties changed their minds.

When the hearing date rolled around, I advised my client to meet me at my office about thirty minutes early and to wear his class A uniform.  The judge had some military experience, so I thought the uniform would do my client some good.  The hearing was set for 1:30, but the judge called me that morning to tell me that a drug trial was starting and that he wanted to slip us in at 1:00, while the jury was coming back from lunch, with the drug trial to recommence at 1:30.  I told the judge that we would be there.
My client showed up five minutes early and we walked to the courthouse together.  I told him what would happen and explained what he would have to do.  We walked into the courtroom and noticed that my fellow defense attorney in the drug case and his client were seated at the defense table.  I told my colleague that my plea hearing had been bumped up to 1:00.  He and his client, who was carrying a briefcase, got up and walked to the courtroom door.  At that time, a deputy entered the courtroom and advised my friend and his client that the sheriff wanted to see them in his small office next to the courtroom.  My client and I seated ourselves at the defense table and waited for the judge and prosecutor to show up.

After about a five minute wait, the prosecutor took his place at his table and the judge took the bench.  The probation officer grabbed the bailiff’s seat, anticipating that he would be asked by the judge to prepare a presentence report on my client.  My client and I were sitting about five feet in front of the double glass doors to the courtroom.  The prosecutor was sitting to my immediate right at his own table.  The judge was sitting about fifteen feet in front of us.
After calling the case and running through the recordkeeping requirements, the judge asked me to bring him up-to-date on the status of the case and to recite the terms on the plea agreement.  I stood and began to carry out the judge’s request, as I had done hundreds of time before.

Suddenly, I heard a loud roar behind me and the double glass doors shattered into a thousand shards that blew behind me and my client on a pressure wave that caused the shards to bury themselves in the wall opposite the doors.  The ceiling fell in with light fixtures hitting me and the judge on the head. My client and I scrambled under the desk.  The judge hid under the bench and the probation officer ducked under his bench.  Smoke and dust blew in through the blown out doors.  I could smell gunpowder.  I heard someone shout outside that “He’s got a gun.”  I immediately thought that someone was going to come into the courtroom and begin by shooting anyone in a suit.  I yelled to the probation officer, “You got your piece with you?”  He responded saying he was unarmed.  I realized that we were in big trouble and it was likely going to get a lot worse.

After maybe a minute with no one coming into the courtroom, my client and I came out from under the table.  My client immediately took off his uniform coat and handed it to me saying, “This is what I am trained for.  Keep my coat and I will pick it up at your office.” 

 He rushed out of the courtroom and went directly to the sheriff’s office, where he began to administer first aid to several wounded people.  He helped a police officer friend of mine who had taken a shard of glass in an eye (he would later lose that eye).  He helped my attorney friend and the sheriff, both of whom had been riddled with bomb fragments.
The courthouse was quickly secured by the police and we were instructed to evacuate the building for fear that there might be other bombs.  I walked out of the courtroom and did not see my client, who had gone with an ambulance.  My former secretary, who had been in the room next to the sheriff’s office, was a little unsteady on her feet, so I helped her down the stairs.  I headed back to my office, my client’s coat in hand, and called my wife to let her know that I was uninjured.

By the next day, it had been determined that the drug defendant had rigged five pipe bombs in his briefcase tripped by a switch under the handle. 

Only three of the bombs had gone off, so it could have been much worse.  When the deputy noticed the defendant was carrying a briefcase, he had reported it to the sheriff, who decided to search the briefcase.  Clearly, the defendant had intended to blow the bomb in the courtroom, taking out the judge and jury.  Stymied in that endeavor, he blew himself up in the Sheriff’s office.

Eventually, my client came back to my office to pick up his uniform coat.  I noticed that his shirt and tie were bloodstained.  He asked what he should do about his case.  I told him that the system would get around to resetting the matter sometime, but that he should not worry about it.  I would keep track of the matter and notify him.  I also asked for the name and address of his commanding officer, so that I could write a letter informing him of my client’s brave action.
A month passed and the matter was not reset.  My client called to inquire of the status of the case.  I told him we should “hide in the tall grass” and maybe it would blow over.  Eventually, a year passed with nothing going on.  Then another year.  My client and I continued to hide in the tall grass, hoping.  Finally, I got a phone call from the judge, who asked if I remembered the case.  I responded that I did.  Then, he said, much to my surprise, “I heard your client was involved in giving first aid to some of the wounded.  Any truth to that?”  I confirmed that it was true.  The judge then said, “I have not heard from the mom, the daughter or the prosecutor.  Have you?”  I advised I had heard nothing.  “Well, it has been more than two years.  Can’t be anyone all that upset about the situation,” commented the judge.  “Probably not,” I said.

A few more months passed with nothing being done about the case.  And then I received a notice from the court that the judge had dismissed the case for the State’s failure to prosecute the matter.  This was good news for my client, but under the law the prosecutor could refile it.  I called him and asked if he was going to do refile.  He responded to my question by saying, “I haven’t heard from anyone for two years.  It’s not like I don’t have anything to do, you know.  I am not going to refile it.”
I called my client and gave him the good news.  As you can imagine, he was ecstatic.  His life and career had been restored.  Who would have guessed?

Looking back on this matter, I have often questioned whether justice was done.  I do not know.  Clearly, my client was guilty of the crime charged.  His actions following the bomb were commendable, perhaps even heroic, but have nothing to do with the committing of the crime charged.  I was under no obligation to call the languishing case to the attention of the court. 

The prosecutor could have done so at any time, but, I suspect, chose not to, since he thought the case was sour from the beginning.  Mom and daughter disappeared from the face of the earth.  Maybe Mom figured out that her daughter was a “sportin’ girl” (an old blues term from the 1920s), and had rethought the potential embarrassment.  Maybe daughter simply pitched a monumental fit.  I just don’t know.  It probably doesn’t make any difference.  It was so long ago.
In the past few years, the American public has been innundated with video tape of IEDs detonating in Iraq and Afghanistan.  While I would certainly agree that the Kokomo bomb was not as powerful as those used by our enemies in those countries, the bomb was powerful enough to crack the limestone and marble walls, floor and ceiling in the southwest corner of the courthouse and to knock the corner of the building out of alignment.  I suppose I can say with honesty that I have been blown up by a bomb.  Our bomber could have set it off in the courtroom when my client and I walked in.  His finger was tied onto the detonator.  But it did not happen. Why not?

 Maybe the Lord was looking out for me and my client.  I like to think so.  I like to think that the Lord saw something redeeming in my client and decided to give him another chance at a normal life.  Maybe, maybe not.  I do not know.  Who can say?
Mike out.

1 comment:

  1. Mike, I was standing in the Clerk's office across the hall from the Sheriff's office when the bomb detonated. The shock wave literally knocked me to the floor. I had never heard that sound before, but I would instantly know it if I heard it again - a crackling sound, like lighting. When I got up, I too was sure it was gun fire and thought that I would get shot to death in the Clerk's office. I remember seeing an undercover ISP officer that I knew, gun drawn, walking INTO the smoking billowing out of the sheriff's office. I walked out with defense counsel whose pants had been blow apart. He got medical help. There were men with guns running in all directions. It was a very scary day, an experience I have never forgotten. I hope not to experience that again.