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Numbers and Lawyers

by Michael J. Carroll

Spring 2001, Vol. 64, No. 1

It was the mid-1980s and I had been at the public defender office a month or so when a senior attorney asked whether I wanted to go with him to the jail for a meeting with a murder defendant. Disappointment flashed in his eyes for the instant I did not look as thrilled as he thought I should. "Sure," I recovered and trailed him to the elevator.

My colleague, Frank, was an extra large human being equipped with beard, gut and a megaphone voice that helped project the presence he needed to bull through jail bureaucrats and hold his own with prosecutors and judges.

I was new to the jail entry ritual and fumbled with the dented locker where I was supposed to leave whatever was not needed or permitted inside. Since I was tagging along, not doing the interview, I did not need much. The yellow legal pad was more for my benefit than the defendant's. It would help me appear to have a function while Frank did the heavy lifting. There was no need for anyone to tell the inmate, Mr. Ivy, that I was new. He shot me one glance, smirked slightly, then returned his focus to the lawyer that counted.

"You know, I'm gonna get a private lawyer," the prisoner began. "So I'm not going to waste a lot of your time.

"My girlfriend borrowed some money, and my mother is going to put a second mortgage on the house. But as long as you're here, what you got to say?"

"Well, what we have to say, Mr. Ivy," Frank began, "is that the prosecutor made a plea offer."

Ivy smiled a "this is going to be good" smile, but could not conceal his interest. He scratched under the bandana that was stretched across his head as he flashed a glance around the tiny room, searching for someone to share a look or a joke with. There was no one to find.

"Yeah, so?" he prodded as he locked eyes and smiled harder and broader. "The prosecutor will let you plead to fifteen years, with no chance of parole for seven-and-a-half years. That's based on your not being the shooter, just a guy from the neighborhood helping out a friend; not really knowing everything that was going down until things started to happen.

"That theory plays well for the moment because a witness puts the sawed-off shotgun in the hands of your friend. The witness puts you there, but doesn't do too much more than that, not yet. The prosecutor's office claims there are more witnesses to be found out there. They usually do. Maybe there are more witnesses, and maybe not. Maybe they'll find them, maybe they won't. Maybe they talk, and maybe they don't. We all know how that goes. Maybe.

"It also helps that your friend has a prior manslaughter conviction and is suspected of another killing they could not hang on him, committed while he was doing his time in Rahway. So he's looking like the bad guy, and you're looking like somebody who was more than just along for the ride, but not someone who planned a killing.

"So the offer is fifteen/seven and a half now, but it won't last. The closer they get to trial, the more they prepare, the more witnesses they find and the tighter their case gets, the more likely the offer will disappear or at least get steeper. Fifteen/seven and a half, for now." It should have been tough for Ivy to ratchet up the smile but somehow he managed. "I got to roll over for that, for fifteen/seven and a half?"

"The plea agreement would require you to 'testify truthfully at trial,'" Frank responded, poking quotation marks in the air with his fingers.

"You don't testify, you kiss the deal goodbye. You want a deal without testifying, then you're talking at least twenty/ten; twenty years with no chance of parole for at least ten years. Standing up and shutting up carries a steeper price."

"Well, thank you very kindly for stopping by, gentlemen," Ivy said as he extended a hand to Frank.

"Things get a little slow in here, you know. Thanks much. But I can't plead to no seven-and-a-half years minimum stip that will turn into ten years easy before the parole board cuts me loose with my record. Thanks, but no thanks.

"Now if you guys come back with probation, or eighteen months, even a flat five-year sentence with no parole minimum-no stip-then we might have something to talk about. Otherwise, tell them I'll be getting a private lawyer and taking this case to trial. You want to help me out for now? Get my bail reduced, maybe an O/R-release on recognizance-where I would not have to put any cash up. That I would appreciate." There were smiles all around at that one.

"Oh, and by the way, what did they want me to plead to for this great deal?" Ivy asked as we packed up.

"I don't even remember," Frank shot back. "Manslaughter? Theft of the victim's watch? Violating a corpse or mislabeling home heating oil? They don't much care what you plead to as long as they get the numbers they want."

We said goodbye, even shook hands again on the way out. Frank and Ivy traded some kind of wisecrack that went over my head. They were born on and lived out their lives on different planets, but each had learned a fair amount about the other's world over the years.

A year and a half and a dozen jury trials later, I was in court waiting for a client who was supposed to be sentenced to probation under a negotiated plea bargain. He was late, and I knew this judge might revoke his bail and lock him up if he did not show up by the time his honor got around to calling the case.

For the moment though, the judge was fully occupied with another matter. Standing in front of him was Ivy. I recognized him immediately even though there was a lot of weight pressing him down that had not been there when I first saw him at the county jail. The weight had distorted him physically. He was now harder and sadder, and a hollowness had displaced the old confidence.

Ivy did not look my way, but may not have noticed me if he had. He had other things on his mind, like trying to convince himself that he was not really standing in the small corner of the universe where he was stuck and not hearing the words that were assaulting his ears. The judge's speech helped explain the decades of change that had collected on Ivy's face in just over a year. Words like "depraved . . . death . . . human being . . ." and "young life cut short . . ." buzzed angrily around the courtroom.

I always marveled at the way that most defendants, Ivy included, went quietly into the long night of state prison after the judge finished the sentencing. I do not necessarily advocate any other course, but I am just amazed by the process. Whether it is shock, the emotional comfort of an imagined appeal to a higher court, or fear that the judge will pile on more time for contempt of court in response to any outbursts, I do not know. I marvel but never completely comprehend. Ivy, like so many in his position, stood inside a silence, a silence that might seem dazed to some observers and almost reverent to others.

After I had met Ivy, he had indeed fired the public defender, hired a private attorney and gone to trial. I was witnessing the result. A jury, after hearing the admissible evidence and listening to the judge's explanation of the law, came back with a guilty verdict. They did not know the sentence. Juries almost never do. But the jury knew that someone died, and they were holding Ivy and his co-defendant responsible. They must have had more than a clue that their guilty verdict would send Ivy to prison for a very long time. More than one juror may have taken comfort in the belief that some appeals court somewhere, some day, would correct any mistake if it turned out they had made one. After all, the jurors knew from television, newspapers and movies that everyone appeals. They may not have known that unlike on television, nearly everyone who appeals loses. The odds were overwhelming that the jury had sealed Ivy's fate forever, and no high court-not the state supreme court, not the United States Supreme Court-would ever disturb the jury's verdict and the judge's sentence.

It all could have gone the other way, of course. Ivy could have dumped his private attorney in favor of a public defender and perhaps fared worse, but it did not happen that way. Public defender wisdom held then, and probably still holds, that unless the accused can bankroll the local Perry Mason or the O.J. Simpson defense dream team, the accused will generally do as well or better with the "free lawyer"-the public defender-as with the average "real lawyer" that the family pays by putting a second mortgage on the house. Truth or fiction, lots of public defenders believed this, probably needed to believe it.

Depending on the state, city or region, public defenders may have a reputation for being inexperienced, overworked and less competent than private practitioners. Public defenders too often have to plead to a charge of handling too many cases, but the other two charges were usually baseless, in my experience. Maybe it's different now, and maybe not. Clients, rich and poor, will probably always want "real lawyers" who charge real money. They may be good or asleep at the wheel, but in this society you are worth what you charge. If you charge nothing, you likely are nothing. You pay for something, it's worth something; you don't, it's not.

So it goes with the public defender, the legal aid lawyer. You cannot blame clients too much for buying into it. Most people out there at some level feel the same way, whether they say it or not. In some of the soul's rarely visited, neglected corners, even the public defender struggles not to believe it. The market rules.

So what about the offer made to Ivy back in the county jail? Seven years, ten years, another sellout by the overwhelmed, inexperienced public defender? Another bad deal from the prosecutor's office? Or just an accurate statement of what the case was worth at the time, before the state fully investigated it? A result certain for both sides before full case preparation and the risk of trial?

Ivy may have been a victim of some things and some people, starting with himself. Three people knew whether he was innocent or at the center of a murder. One, the victim, died the night it all started. The second was Ivy's co-defendant, the alleged shooter who had spent most of his adult life in prison and was charged with the murder that would send him back forever. The third person who knew was Ivy, the stand-up guy who refused to testify against a friend and would not plead to anything like fifteen/seven and a half.

After a considerable monotone monologue, the judge got to the point. His oversized words expanded further to fill the hushed courtroom: "I sentence you to the custody of The New Jersey Commissioner of Corrections for a life term during which you will be ineligible for parole consideration for a period of thirty years. Since our legislature has, to date, failed to pass a death penalty statute that has survived constitutional challenge, this is the most severe sentence I can impose on you for murder. Would that it were otherwise." The judge droned on with more words that could have been powerful standing alone, but were eclipsed and eviscerated by the words that had preceded them.

"Because of the horrendous nature of your crime, sir, the aggravating factors that include your lack of remorse, I am sentencing you to an additional term of five years for possession of a weapon for an unlawful purpose. During two-and-a-half years of that sentence, you will be ineligible for parole consideration. This sentence shall be served consecutively to the sentence I have just now imposed. That means, sir, that you cannot begin to serve this second sentence until you have completed the first."

Numbers. These last numbers, virtually meaningless now, would acquire deeper meaning in the decades ahead when the 25-year-old Ivy neared age 55. The other numbers presented by Frank in the county jail so long ago, the fifteen/seven and a half, would start looking good to Ivy in his early thirties. He was going away for life/thirty, and some change. It would be three decades before he would go home again-if he survived-three decades because of the numbers he rejected and the ones that finally found him.