Performance theater serving a purpose

Can I complain?

Client is about to receive a mandatory minimum sentence of 12 months.

A “minimum sentence” is defined as the least amount of time that a defendant must serve in prison before becoming eligible for probation or parole.

A mandatory minimum sentence means that the court has no choice but to sentence the defendant to the amount of time prescribed the statute.  

Client is aware of the forthcoming sentence.  But, during a presentence visit at the jail, he suggests that he be allowed to serve the sentence on house arrest.  After all, why clutter up an already overcrowded jail when the same purpose – keeping him off the street – can be achieved through home detention?

He refuses to accept my explanation as to how the law prevents the judge from agreeing to this, even if she were so inclined.  At one point, I even show him the statute.

Meeting with client in the cellblock behind the courtroom on the morning of sentencing, client continues to insist on house arrest as an alternative to mandatory incarceration.  

Always hurried, such meetings are made even more difficult by the fact that there are now other inmates eavesdropping on the conversation.  

And, of course, client continues to push the point during the sentencing hearing itself, talking in my ear as I try to pay attention to the proceedings.  

Finally, after the critical point of the hearing at which the judge pronounces the sentence, I inform the judge that my client has asked me to raise an issue with her.  Specifically, I say that he would like her to consider house arrest as an alternative to incarceration.   

If you were attempting to capture the quintessential image of a “withering look,” the judge’s expression at that moment would serve as a perfect GIF.   

“Mr. Koehler,” she said.  “You do know that would be an illegal sentence, right?”

“Yes, Your Honor.”

“And did you explain that to your client?”

“Yes, Your Honor.”  

“So you are asking me to impose an illegal sentence.”

The judge and I regard each other for just a moment across the well of the court.  

Then dismissively, with a hint of resignation:  “I don’t know why you would ask for something,” she said, “you know I can’t order.” 

I did not answer the judge at the time, but I have thought about it since.  

And I do have an answer now.

Sometimes we need to say things in court strictly for the benefit of the client hearing it.  This is particularly true in court-appointed cases in which the client may question both our competence and our allegiance. 

Most other judges in D.C. seem to understand this.  

I had a client a number of years ago who was absolutely convinced that the charges against him were ridiculous.  All I needed to do, he thought, was to utter the magic words asking the court to dismiss the charges and, presto, the case would be gone.

“You will never know,” he insisted, “unless you try.”   

So, in front of a judge I knew to be patient, I indulged the client. 

“Your Honor,” I said when our case was called.  “I have explained to my client that it is not up the court to decide at this point whether or not a case proceeds.  That decision still belongs to the government.  So I would like to ask the government – through the court – whether they would be willing to dismiss these charges.”

There were no smirks or grimaces.  Instead, the judge simply looked at the prosecutor:  “Government?”

The prosecutor was equally professional.  “There are no grounds at this point,” she informed the court, “to dismiss the case.  We will of course continue to re-assess things, as we always do, as the case progresses.”  

The client looked relieved.  It was as if he had an itch and that itch had just been scratched.

Performance theater, perhaps.  But, in reassuring the client that all avenues were being pursued on his behalf, it served a purpose.  

As for my client and the mandatory minimum, I was not sorry I had raised it, despite the judge’s raised eyebrows.  

My client was about to serve a lengthy jail sentence.  I didn’t want him to spend every day of that 12 months convinced that, but for his lawyer’s failure to advocate his behalf, he could have been serving that time in the warm confines of his home.