What happens if I release him and he goes out and kills someone? What happens if I release him and he goes out and gets himself killed?
You know these questions are going through the judge’s mind every time a defense attorney argues for a client’s release. It is the great unspoken in the court room. It is why the defense attorney spends a great deal of time trying to convince the judge that all the necessary safeguards are in place so that the judge’s worst nightmare won’t occur.
And then the judge’s worst nightmare does occur. The judge releases a defendant over strenuous objections of the government and the defendant goes back into the community and gets himself killed.
Does the prosecutor lose any sleep over this? No, he was the one who was arguing for continued detention. He has the satisfaction of saying “I told you so.”
How about the defense attorney? Does he feel guilty for his role in securing the defendant’s release? Not at all. Assuming he was representing the expressed wishes of the defendant himself, that is precisely what he was ethically obligated to do.
So it falls back on the judge, and in the case of Tyronn Vincent Garner, who was killed Halloween night in Georgetown after being released from custody, it falls back onto D.C. Superior Court Judge Milton Lee of the Juvenile Division.
Or does it?
I have to tell you, I like Judge Lee. It is not only that he has the guts to grant a motion for judgment of acquittal when the government has failed to make out its case at trial. It is not only that he takes the time to get to know – to connect with — every juvenile who comes in front of him when the inclination could be to rush through the docket. It is also that he has the courage to make the type of decision that in some cases could lead to tragedy.
Judge Lee fully understood the risk when he decided to release Garner from custody. “One day,” he told Garner’s mother, “there’s going to be a horrible end to all of this – and I don’t want anything to happen to your son but for him to get his service – but I can imagine . . . if something happened to him while he was at [the Department of Youth Rehabilitation Services] . . . as opposed to [the drug treatment center] where he was supposed to be, there’d be a headline out there somewhere and there would be, I’m sure, employment difficulties across the board. It should never come to that.”
At the same time, Judge Lee is big on due process and accountability. And when he found out that the D.C. Department of Youth Rehabilitation Services (DYRS) had failed to get Garnner into a juvenile drug treatment facility in Pennsylvania as it had promised to do, he felt he had no choice but to release Garner from custody. As the Washington Post reported it, the Judge did not believe that Garner’s continued confinement without drug treatment was appropriate.
The problem, according to a Post editorial, is that “the District has a system that gives judges no authority to determine the future treatment of youth committed to DYRS. Says Chief Judge Lee Satterfield: “There’s nothing we can do. We have no authority; we can’t hold in contempt or force action. We can only yell, and that is not good enough.”