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By Daniel I. Small
Most of the crimes we dealt with in the federal Magistrate’s Court in Hyattsville, Maryland, were everyday ordinary crimes, often committed by everyday ordinary people. No serial killers, no inside traders, no corrupt politicians. They were mostly people trying to live their lives but doing it wrong, at least once.
Maybe the work of a wise, experienced jurist and a brand-new lawyer that day ended up not making any difference. But maybe, just maybe, it did.
In that real-world environment, the magistrate’s mantra, to himself and to everyone in the courthouse, was, “Do the right thing.” It should be the mantra for all of us trial lawyers.
Was it the wisdom of Solomon? No, just common sense and caring. We processed a lot of cases, and many — maybe most — were routine. But each one meant something to those involved and deserved our consideration, some more urgently than others.
One day, a mother came in with her 15- or 16-year-old son who had been arrested for simple possession of marijuana in one of the local parks. It was hardly the crime of the century, but in our early morning conference, the park ranger who made the arrest warned me: “This kid is headed down the wrong path. I’ve seen him out there before, and he was nothing but arrogant and insulting when I arrested him.”
Sure enough, in court when I got to then teen and his mom in line, that description held true: “This is bulls–t! You’re an a–hole!” And with a final expletive, he stormed out of the courtroom, telling mom, “Take care of this s–t!”
At that point, mom started to cry. She was losing her baby boy and didn’t know how to fix it. She knew no way to steer him away from the tough, older crowd he was starting to hang out with. She loved her son deeply, but he had become just as arrogant and abusive at home as he was in court. She was out of options and desperate for help.
I was an assistant U.S. attorney, an honored position. Surely, I could do something to help her?
I had no idea what to do, so I ignored the line and went back into chambers to talk to the magistrate. He listened, flipped through the thin file to familiarize himself with the facts, and then said he was going to come out on the bench early and hear the case first.
So, I called the case. The judge had the arresting officer describe the offense and then turned to the defendant and asked him what he had to say. There’s no transcript, and it was a long time ago, but what followed remains pretty strong in my memory.
Defendant: This is a BS charge; it wasn’t even my pot.
Judge: I would warn you not to say anything further without getting legal counsel.
Defendant: That’s BS. I don’t need a lawyer. I know my rights.
Judge: So, you understand what you’re charged with?
Defendant: Yes, it’s BS.
Judge: So, you understand what the penalties are for this offense?
Defendant: My mom is here; she’ll pay the fine.
Judge: I asked you if you understand what the penalties are.
Defendant: Do I look like a lawyer?
Judge: Mr. Small, would you read into the record the statutory penalties for this offense?
Small: Yes, your honor. It’s a maximum term of imprisonment of one year and a fine of $10,000.
Judge: Yes, that’s correct. I find the defendant guilty as charged and finding no remorse and the likelihood of a repeat offender, I hereby sentence you to the maximum one-year imprisonment and a $10,000 fine, to be paid by you, not your mother. You’ll have plenty of time to think about what a smartass you are. Mr. U.S. marshal, please cuff him, step him back, and put him in the holding cell.
Defendant: What?! You can’t do that! What?!
Judge: Mr. U.S. marshal, cuff him and put him in the holding cell.
At that point the marshal grabbed the teen, cuffed him and dragged him kicking, screaming and crying back into the little holding cell we had, where he was chained to the bench and sat.
And sat.
And cried.
Throughout the day, as we worked through other cases, the magistrate would occasionally call the marshal and me up to the bench and ask how he was doing. The marshal reported that the defendant was crying and begging for help.
“That’s a start,” the magistrate responded.
Finally, late in the afternoon, the magistrate called the mother and me up to the bench. He asked her what she wanted him to do. The mom, still in tears, thanked the magistrate for his toughness and said that she was willing to try to take him home. So, the magistrate had him brought out, still in the prisoner’s chains. The arrogant jerk of the morning was now a puddle of sobbing Jell-o, as a 15- or 16-year-old would be after a day like that.
The magistrate stepped in.
Magistrate: “Young man, if you think a day in a holding cell was fun, let’s try 365 days in a federal prison. Is that what you want?”
Defendant: “No, your honor, please. Please let me go, I’m so sorry!”
Magistrate: “I’m inclined to sentence you to the full year. The only reason I’m reconsidering — the only reason — is that your mother seems like a good person, and she has asked me with all her heart to give you a second chance. Do you think that you deserve a second chance?
Defendant: Yes, your honor, please!
Magistrate: Given your lousy attitude, I’m not so sure.
Defendant: (Sobbing) I’m really sorry! I didn’t mean it! I’m really sorry!
Magistrate: Well, only because I believe that your mother is a good person, and she has asked for mercy for you, I am willing to suspend your sentence. But let me make something very clear to you (voice rising). Are you listening carefully?
Defendant: Yes, your honor.
Magistrate: Are you listening very carefully (voice rising)?
Defendant: (sobbing) Yes, your honor.
Magistrate: (voice rising) If I ever, ever see you in this courthouse again, or ever hear from your mother that you’ve screwed up again, you just pack your toothbrush because you are going to jail for the maximum. Do you understand me?
Defendant: Yes, your honor.
Magistrate: Do you have any questions about what I’ve just told you?
Defendant: No, your honor. I’m so sorry. I won’t do it again!
Magistrate: You’d better not. Now go home with your mother!
The mother took her son out of the courtroom, led him to the bathroom so he could recover for a moment, and rushed back into the courtroom in tears to give me a hug and thank me. Then she went up to the bench and said the same thing to the magistrate.
“Good luck,” he said, “Come back if we can help.”
And she left.
Under the unwritten rules of that court, a first offense simple possession charge without serious aggravating facts would never have resulted in prison time. But to the magistrate, that wasn’t the point. Maybe the work of a wise, experienced jurist and a brand-new lawyer that day ended up not making any difference. But maybe, just maybe, it did. And it was our responsibility, in the magistrate’s mind, to try to do the right thing.
As trial lawyers, our obligation is to represent our clients zealously, but we should never forget that our clients, and everyone involved in the case, are real people with real problems. Whenever we can, within the bounds of representing our clients, we should always seek ways to, as the magistrate said, “do the right thing.”
Daniel I. Small is a litigation partner in the Boston and Miami offices of Holland & Knight and the author of “Lessons Learned From a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers” published by the American Bar Association. This commentary is adapted from the book with permission of the ABA.
