Thursday, February 20, 2014

Humor That Makes Us Laugh and Cry: Part II

Losing it in court
Many of the truths I have witnessed have not only crossed the border into the realm of strangeness, but sadly are, in no small part, caused by the human foibles of mental health problems and alcohol and/or drug abuse. Humor has been a part of my experiences on the bench. But humor can be sweet and sour. After all, humor cannot exist without roots to the tragic truth below its surface.
Several years ago, I happened to be in court where I met another young man. He was charged with walking into a mom and pop grocery store, proceeding to the freezer in the back of the store, grabbing three half gallons of ice cream and simply walking out the front door – completely ignoring the cashier. He was quickly apprehended while walking down the sidewalk carrying the ice cream.
Having been in criminal court (at that time 20 years ago) for two years, I soon learned some cases languish in the magisterial court for too long. These were defendants held in jail for minor offenses who could not post bail. For instance, during this assignment, I met at least three different men who had taken shopping carts home from the super market without returning them. At least that was the theory, perhaps someone else committed the theft of the cart and abandoned it until a homeless person found it. That detail is unknown, but the cart was used by each of the defendants to hold every personal item they owned.
Around this time, the legislature, after apparently receiving “heat” from the Pennsylvania Mercantile Association, cracked down on the “criminals” who absconded with these carts by, of course, increasing the punishment for cart theft. This made it a more serious offense – one that the district justice (as they were known at that time but are now known as magisterial district judge) could no longer handle as a lesser offense with a summary criminal grading. These homeless people were charged with misdemeanor offenses and thus had to have a preliminary arraignment, followed by a preliminary hearing before a district justice could send the case to us for trial or other disposition. Perhaps the defendant should be released on bail during this time…except for one thing. The defendant, being homeless, could not even provide a legitimate address. The district justice concluded that he had to set secured bail. Of course we cannot expect a homeless person to even post the minimum secured bail, so each defendant sat in Berks County Prison during the delay.
Our ice cream thief was not in possession of a cart, but he did steal one and a half gallons of cold refreshment. Secured bail was also set in this case. The defendant didn’t have a prayer of posting any money for bail. Due to jailed defendants like this I had to monitor the inmate list as soon as possible, when they first appeared in court for arraignment. Until this time the court master conducted arraignment. I changed the procedure from that day forward, handling all criminal cases before me rather than the master. The sooner I could monitor these cases the better.
It happens to be Ash Wednesday and I’m arraigning the newest group of defendants, including the ice cream guy. The public defender requested that we immediately dispose of the charges against this young man. Apparently, the commonwealth attorney agreed to a guilty plea, with both sides requesting that I sentence him to time served so he could be released from jail that day.
He entered his guilty plea and it was my job to determine a sentence. Not surprisingly, I agreed to the time served sentence request. He had already spent approximately 50 days in Berks County Prison. Everything went smoothly and it was now my turn to advise him of his appeal rights, which went as follows:
Judge: You understand that you may file a post sentence motion before this court and that you have only 10 days to do so?
Defendant: Yes.
Judge: And you understand you have the right to file an appeal to the Pennsylvania Superior Court and that you must do so within 30 days and that you have the right to legal counsel to aid you.
He stood tall, as if on his toes, looked me right in the eye and answered, “Indubitably.”
I don’t know how long he waited to use that word or if he had ever uttered it before. I do know however that he had observed while sitting in court that day that I drink a lot of water. He was also fully aware that he was not free to leave until I was finished with him. I noticed my chair moving back and forth as I looked down at my papers while trying to continue to advise him (while not looking him in the eye) that if he can’t afford a lawyer one would be appointed for him free of charge. I was never able to continue. Again the court room had been filled with representatives from every type of group mentioned in Part I and they had heard the exchange. It started with strong attempts to refrain from openly laughing, but his spirit had spread and now I’m no longer successful in displaying the proper judicial demeanor. To make matters worse, the defendant attempted to be helpful by saying: Do you want to take a break? (more laughter) Do you need a glass of water? (even more laughter) Take as much time as you need – I’m not going anywhere.
We all lost it!
That night while enjoying Charlie and Mary Ann’s homemade soup in the church’s social room, I told this story to a table of parishioners before attending church. The next Monday at the regularly scheduled church council meeting I was surprised to see the gift of a t-shirt at my seat, along with the plethora of church business before us. The gift was signed by Anony Mouse, “The Church Mouse” and in bold letters across the front of my shirt was the word: INDUBITABLY.
I never saw the young man again. I don’t know if he has been naughty or nice. Unfortunately, the lady known as “The Church Mouse” moved from Fleetwood. She and her husband enrolled in a local church. As for the shirt, I wore it regularly until my wife allowed it to pass onto the hereafter life. It eventually joined our supply of domestic cleaning rags.

Wednesday, February 12, 2014

Humor That Makes Us Laugh and Cry: Part I

Part I
It has been said that TRUTH IS STRANGER THAN FICTION. I always attributed this quote to well-known American author Mark Twain, along with the answer to the question, “why?:” That’s because fiction is limited by plausible explanations, whereas truth is not.
             Many of the truths I have witnessed have not only crossed the border into the realm of strangeness, but sadly are, in no small part, caused by the human foibles attached to mental health problems and alcohol and/or drug abuse. As 2014 begins, I intend to share the humor enclosed in my experiences on the bench, though it will be both sweet and sour. After all, humor cannot exist without roots to truth and sadness below its surface.
Picture this: A courtroom filled with defendants, defense attorneys, prosecuting attorneys, sheriff’s deputies, interpreters, witnesses and families of the defendant[1]. Of course there is a court reporter who “writes” down everything said during the proceedings, my staff, usually news reporters, police officers and myself. I’m moving right along with the list when the district attorney called the next case. A young man in handcuffs and ankle shackles walks in from the lock-up. He is visibly talking to himself. I read that the defendant was facing a drug charge and am also fully aware that street drugs are often used as a poor man’s prescription plan to treat mental health issues. When this occurs, the problems of anti-social behavior grow much worse because now a mentally disabled person is exhibiting deviant behavior with added complications from perhaps a low I.Q. and a drug addiction.
I felt confident in asking this young man if he was taking drugs to combat his mental health issues. In other words, let’s get to the point. Before any attorney spoke, he turned toward me and proudly responded to my question by saying “I don’t have a mental health issue you mother fucker!”
Needless to say, people can be their own worst enemy. After his proclamation, I didn’t do anything further with him and his contemptuous behavior. What’s the point? However, consider a child custody case where the father represented himself in the proceedings. He was requesting that I grant him primary physical custody of his child. Before we could even address the merits of his petition or the case itself, the clerk raised the court by announcing that court was in session and everyone was to please rise. The father didn’t and refused to do so. I do not take these things personally. Of course he is showing no respect for the court as an institution, but, imagine, he will soon stand before the same court asking that I right the wrong of his custody case because he clearly has the best intentions in his heart and mind regarding his children. To ensure his success, he introduces himself on his day in court, in essence, by proclaiming he will not follow the laws and will disregard authority. Despite a sheriff deputy’s suggestion to cooperate, he continued to refuse to stand. This is very telling.
Alcohol Abuse
It is not surprising that in my 22 years on the bench that I have seen my share of alcohol abuse cases.
·         People coming directly to court after being influenced to various degrees by alcohol consumption. (In other words, being drunk or under the influence of alcohol in court.)
·         A woman who appeared drunk for her guilty plea anticipated her immediate sentence of three days in jail. What is a judge to do? She was too drunk to knowingly enter a guilty plea. Should I have revoked her bail and put her in prison for the weekend so that when she was sober the court could properly dispose of the case? Draw your own conclusions.
·         People who cause or attempt to cause a variety of alterations regarding their court-ordered urine analysis. How? 1) Trying to substitute someone else’s urine 2) Giving a sample that revealed no alcohol in the system, but also showed the sample was not the appropriate temperature of approximately 98.6 degrees Fahrenheit. It was in fact room temperature, almost like it was filled by dipping the cup into toilet water and submitting it as a legitimate sample. 3) People who look me in the eye and swear that they have not been drinking and immediately register a 2.2 on the portable breath test. 4) With a blood alcohol content of 4.0 registering on the adult probation’s portable breath test, a man came to court under the influence of alcohol, and except for the odor of alcohol, he didn’t talk or act as if he was.
Sadly, too many people have experienced the tragedy of alcohol abuse. From a D.U.I. arrest to a domestic violence issue, there is no one who can negatively influence the life of a child like his own mother or father. Of the wide spectrum of cases handled in court, the worst tragedies are homicide by vehicle while under the influence. Over the years, I have sentenced about 20 different defendants who found themselves in this situation. It’s sorrowful for many reasons. In some cases the defendant sits and cries hysterically as witness after witness comes forth and tells him or her about the victim who was shockingly taken from their lives in an instant. Spouse, father, mother, daughter, brother, son – the victim was a healthy, loving, and supportive rock of the family, but in a second was removed forever by a drunk driver for no reason at all.
These sentences for D.U.I. homicide by vehicle carry a mandatory minimum sentence of 3 to 6 years in prison. Once again, a judge has no option but to follow the prosecutor’s mandated sentence, when he, the district attorney chooses to invoke the mandatory, even if the judge believes that two wrongs (the tragic death of the victim and now the mandated sentence for the defendant perhaps being too long) don’t make a right.
Next week Part II: More humor that makes us both laugh and cry

[1] These are important days for family members because they can see their loved one without having to travel 100 miles for a visit in a state prison.

Wednesday, February 5, 2014

Questions to Ponder Part II: Discriminatory Enforcement of our Criminal Lives

We have mostly enforced the tough on crime laws in the cities where politically, the people’s clout is minimal. Last week, I opened Part I by posing seven questions for the reader to ponder. The answer to each is found by sorting through the devastation that our criminal justice system has caused our cities to suffer in the last 40+ years, particularly the mounting casualties suffered by city residents as a result of the war on drugs. It’s much easier to pass tough laws and institute programs that impact minorities in our cities than if the legislative or executive branches did so in our suburbs. And it’s an endless cycle. The more we incarcerate the more the crime rate increases so that the general public clamors for tougher laws in the cities to deal with the burgeoning crime problem which is caused, at least to some degree by this tough on crime philosophy.

Of what do I speak? Examples range from mandatory minimum sentences for any drug transaction within 1,000 feet of a school to increasing violence by telling defendants who are arrested that the best way to have the mandatory minimum sentence dropped is by being a police informant to rat out others who use or possess drugs - friends, family, neighbors-anyone will do.
Snitches get stitches
He’s told that if his cooperation leads to many more arrests, that “accomplishment” will be taken into consideration by the prosecutor to get his sentence reduced. Sadly the criminal justice system is increasingly familiar with this threat (and promise). There is so much retaliation for cooperation with the police that there are plenty of eyewitnesses that fail to testify because of the harm that could be inflicted on them and their families.
The use of school zone mandatory minimum sentences has no definitive effect on crime[1]
The problem with mandatory minimum sentences for defendants within a thousand feet of a school zone is that city school zones are nearly always within 1,000 feet of the drug arrest, resulting in almost every city resident being subject to this tougher sentence. Whereas, almost the opposite is the case in the suburbs and in the country where of course a much higher rate of white people reside and where nearly every drug transaction is not within 1,000 feet of a school. So where is drug enforcement the greatest? Are “tough” drug laws effective? Is it logical? Has it worked?
Now, this “tough on drugs” law might at least appear to be a reasonable response to the drug problem if the facts were to tell us that. But they don’t. First of all we have arrested more people, seized more illegal drugs, destroyed the family structure and at the same time created a greater chance of violent retaliation for all the many drug informants. There should be no drug problem today. We should have won the war on drugs, but despite increasing law enforcement  in the cities, the drug problem hasn’t gotten better; it’s gotten worse. Furthermore, I’ve never had one school zone mandatory minimum sentence that actually involved a student, teacher or staff that was conducted on school property including school kids going to and from school.

I’m not saying drug deals don’t happen in school, however, we in Berks County have never once had a drug case within 1,000 feet of a school that had anything at all to even remotely do with a school property or school activities. In fact, most of the cases that get to court involve transactions that occur when school is not in session. Most are in the evening and middle of the night during the summer and on weekends in locations that may be as far as four blocks from a school, but still within 1,000 feet.
Crack cocaine v. powder
Crack cocaine is a drug of preference for minorities while powdered cocaine is mostly used by white people in the suburbs. For 25 years federal mandatory minimum sentences punished crack cocaine sales 100 times more than powder! In other words, possession with intent to deliver five grams of crack received the same mandatory minimum sentence as powder but only if the weight of the powder is 100 times greater, 500 grams. That discrepancy was criticized for many years because it discriminated against minorities – so they changed it. However, Congress did not make them equal in punishment for the same weight. It was reduced to 10 to 1. It’s still discriminatory but not as unfair an inequity as before – but still an inequity.

Stop and Frisk
In addition, some of the “enforcement” of drug laws come from police officers stopping minorities, asking for identification and ultimately permission to search them. These are not cases where the officer has any probable cause to believe any crime has or will occur or to reasonably suspect the citizen even possesses contraband or the fruits of any crime. There are hundreds of thousands of stop and frisk practices that occur in every major city in the United States every year! Philadelphia and New York, among others have faced civil litigation because 85-90% of all stops are of minorities. They don’t conduct stop and frisk in the suburbs or in the countryside, where more than 85-90% of people are white.

The war on drugs has failed. The drug problem’s worse than ever and also includes increased violence in our country and in other countries that fight this war. In the last decade, Mexico has cracked down on their drug problem. What is the result? The drug problem has grown worse and the murder rate has gone through the roof. There have been more than 50,000 violent deaths in Mexico in the last 10 years,  most in retaliation and range from victims who are a member of a different drug cartel, to elected officials who enforce the laws to those who provide evidence to the government in an attempt to help their own case.

Locally our prisons are bursting at the seams with drug offenders, most of which are small fish in the drug enterprise. If they were big fish, we would have greater results from the war on drugs. That’s logical. A few examples of the extremely large seizures throughout history in the U.S. and in other countries, and one must ask is the drug problem corrected? Is it even better today?: France 2013 – 1.4 tons of cocaine in 31 unclaimed suitcases in luggage on a flight from Caracus. During 1984 in Columbia, $1.2 billion worth of cocaine, which is 14 tons, was seized after a raid on a jungle lab controlled by Pablo Escobar. In 1989, a Los Angeles warehouse stored 21.4 tons or the equivalent of 1.38 billion powder doses of the drug. If not seized, it had a street value in Los Angeles of more than $6 billion. Drug agents also seized 13.8 tons of cocaine in Columbia in 2005 and the U.S. Coast Guard found 20 tons of powder on a Panamanian ship.
The annual budget for the PA Department of Corrections alone has increased 1900% from 1980 ($94 million) to today, as it is about to exceed $2 billion annually. And this does not include 50 prisons, and numerous halfway houses and federal prisons throughout Pennsylvania. What have they accomplished?

The family structure in our cities has deteriorated from the over incarceration of parents. We know that a higher percentage of minorities are living in our cities and that an inordinately higher percentage of the minority population is put in prison so far from home that family contact is impossible. (See footnote 2)

What can we do? Contact your legislator and request that we attack this problem from all aspects, not just by putting tougher crimes on the books and beefing up the city law enforcement presence as we’ve done over and over again in the past four decades.

[1] This is the conclusion of the Pennsylvania Commission on Sentencing from its study conducted about four years ago, yet school zone mandatories continue in full force and effect in Pennsylvania.

[2]My wife recently retired as an elementary school counselor in the Reading School District. She and our grown daughter still make school visits to the kids as they progress through the grades. They decided to invite them to a lunch at our home over the holidays. One child couldn’t join them. Her mother was incarcerated, so the “separated” father seized the opportunity to stop paying child support by bringing her to live with him, thus cutting all contact the child had with her grandmother, who had raised the family, since mom went away. The grandmother told my wife she can’t invite the child to lunch because the father won’t answer her phone calls. She does know that dad is living with a 20-year-old mother of two. The young mother treats the child as an outcast, giving all her love and attention to her own children. The grandmother has hired an attorney to obtain custody of the child again. The mother? She is incarcerated at the opposite end of the state, an 8-hour drive to the state prison in Erie, Pennsylvania.