April 20, 2013
42 of 65
People v. Joe D.
Fort Collins is always farther away than I think it should be. Today is my wife’s birthday and we went to Fort Collins to tour the New Belgium Brewery and have dinner with our children and some other family members. Traffic was heavy and we hit every red light along the way, so we were almost late.
The hurry and stress of being late reminded me of another trip to Fort Collins many years ago.
I had a client named Joe, a young Hispanic man, who was charged with 1st Degree Assault, a serious felony, in Larimer County. The story behind the case was interesting.
Joe was working as a janitor at Colorado State University in Fort Collins. He and his pregnant wife had been staying at a cheap motel in Loveland, about 10 miles south of the University, until they could find a house to rent. When they found a place in Fort Collins, they informed the motel owner in Loveland and an argument had ensued about the rent they were being charged and some alleged damages to the motel room. It had not been resolved when Joe and his wife began loading their belongings in his VW and moving them to the new house – it took several trips.
They were in Fort Collins, headed back to Loveland to get their last load, when Joe looked in his rear view mirror and saw the motel owner and another man in the pickup truck directly behind them. He wanted to avoid the guy, so he changed lanes. The truck behind changed lanes, too. He changed lanes again, and the truck stayed behind him. The traffic stopped at a red light and Joe yelled back, “What do you want?” The motel owner pointed his finger and yelled, “You.”
Joe certainly did not want any trouble that would upset his pregnant wife. When the light changed, he made an illegal U-turn, hoping to attract a police officer. The motel owner followed him. There is never a policeman around when you need one.
Joe quickly made another U-turn and was going south again, but the truck was still behind him. A co-worker lived nearby, so Joe drove to that man’s house and pulled into the driveway. The truck pulled in behind him, blocking any exit. Joe jumped out of his car, taking from his pocket a small knife he used to scrape up gum from the floors of University classrooms. He waved the knife, telling the motel owner to leave. Instead, the other man and his friend began opening their vehicle doors to get out. Joe pushed the driver’s door closed against the motel owner’s leg and cut the man’s arm with his knife.
The motel owner and his friend quickly started their truck and drove away. Joe was arrested later that day.
Before the trial, we offered to plead guilty to a misdemeanor so Joe would not run the risk of being convicted of a major felony. The Larimer County DA’s office was not willing to make that plea bargain. They thought the crime was too aggravated. To show how serious they saw the situation, the Larimer County District Attorney himself was going to try the case. He would not leave it to one of his deputies.
After all, the defendant had an Hispanic surname and a knife. They didn’t want anything like that in their county.
We went to trial – before an all-Caucasian jury. The prosecution clearly failed to prove the elements of 1st Degree Assault. Our defense focused on Joe’s state of mind to show that he was reasonably acting in self defense.
At the end of the evidence, I moved for dismissal because the charges had not been proven. The judge denied my motion. Next, the judge stated that he would instruct the jury on the 1st Degree Assault charge and include a verdict form for that charge. Again, I objected; and again the judge ruled against me.
In my closing argument, I explained as carefully as I could that the prosecution had the burden of proving each and every element of the crime beyond a reasonable doubt. I then reviewed the elements and the evidence, pointing out that not only was there still a reasonable doubt, but in fact the uncontradicted evidence showed many of the necessary elements simply had not occurred in this case. I thought the jury understood as they left to begin their deliberations.
About three hours later, a verdict was returned: Guilty of 1st Degree Assault.
After all, the defendant had an Hispanic surname and a knife.
We appealed. I made the same argument to the Court of Appeals I had made to the jury. The appellate court agreed with me – as well it should have – and reversed the felony conviction. However, the court said that Simple Assault, a misdemeanor, was a lesser included offense, and the jury’s verdict should be seen as a finding of guilt on that charge. There was no need for a new trial.
Joe had been willing to plead to a misdemeanor months before, so we were satisfied with the result. All that was left was to return to court for the sentencing.
The morning of the sentencing hearing, Joe had been delayed by traffic and met me about 15 minutes late. He rode with me as I drove to Fort Collins. We were further delayed when we had to wait for a long train. Ultimately, we were late for court.
We went to the courtroom and found it completely empty. I had Joe wait while I went back to the judge’s chambers. The outer office was empty – I learned that the clerk and bailiff had gone out for a coffee break. I went to the judge’s office and knocked on the open door. He looked up from the Playboy magazine he was reading. I am not making this up.
I apologized for our tardiness; the clerk, the bailiff and the district attorney returned; and we all went to the courtroom.
The judge ordered Joe to pay a fine and asked if there was anything else. I stated that Joe would like his knife returned since it was no longer needed as evidence.
The judge asked the DA what his position was with respect to the request. The DA responded, “We do not return weapons used to commit crimes.”
“Well, there you are,” said the judge.
I asked by what authority the prosecution felt it could keep another’s property. The DA said, “That is our policy.”
The judge smiled and said, “Well, Mr. Weltzer, you have shown that you know where the Court of Appeals is located if you want pursue this. Court is adjourned.” I don’t think he was happy that he had been reversed in the previous appeal.
We let them keep the knife. It was a lot less expensive for Joe to buy a new one than to pay for an appeal.
I’m glad that you did not compromise your ideals, appealed, and followed through to the last. It gives hope to everyone who sees such an example. Every profession is defined by ideals which exist regardless of the character of the persons and/or systems which corrupt or divert or compromise those ideals. Every person encounters situations which offer the choice to behave according to principle, or to compromise because “that’s the way it is.”
Prejudice corrupts justice. So does laziness. As you noted earlier, at times the system itself is no better than rolling dice when seeking justice. The justice system can and has been twisted and perverted by twisted and perverse people; yet behind the actions of those individuals the principle of justice remains. That principle is not originated in the systemic construct of law. It’s a basic human quality. And the individual who embraces the principle of justice in their own conduct is the very definition of justice itself.
It always comes down to the individual and their willingness to practice principled thought, speech, action and effort. Many don’t, and are not even aware of it. Some do, and their actions balance the scale against what at times seems an overwhelming weight of selfish, small-minded people who are ignorant of principles and human virtue.
If a person earns a livelihood in a compromised system, they are compromised. No one escapes that. In order to live in this country, arguably the richest and most voracious consumer machine in the world, we are all compromised by the facts of that machine. It is not possible, as the medical profession at one time endeavored to do, to “first, do no harm”, and live the way we do. The machine is a fact, and we find ourselves supporting it with our time and energy because it seems that it is the only thing which will provide us with bed and bread and success and validation as worthy people. It’s not a happy fact, and few people choose to examine it for very long.
Yet even as systemically compromised people we can, as individuals, conduct ourselves with conscious principles. We can be fair with others, serve others, avoid the quick buck and the laziness of shoddy work. We can refuse, whenever possible, to support the energy of unprincipled or ignorant people and businesses with our time, attention, energy or money. We can care for others, and be sensitive to their needs, and provide for those needs as we are able. And we can do our best to oppose the unprincipled and forward principle in the system itself.
There’s an old joke about a minister who got mixed up during his sermon and asked, “What does it profit a man if he gain wisdom and lose all his riches?” It’s not always a joke. At the end of the day too often the sum of life in the consumer machine is totted up in terms of material gained rather than principles practiced.
I really liked seeing your practice of principles in the case of Joe D.