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Do The Right Thing Chapter 2

Those who have little else to do and are, by nature, procrastinators, sometimes fill their hours by perusing this publication. Of that group the truly dissolute-the ones who tend to move their lips when they read-struggle through this column. It is to those individuals of limited intellectual energy that I relate the following.

Straining your memories you will recall that in the last edition of Marble Columns I related the story of Jim, the gentleman whose alcohol-fueled exploits had led him to the Whalley Avenue hoosegow from which a kindly judge and sympathetic prosecutor allowed him a three-day bail pass so he could attend his father’s wake and funeral in Boston. This is the follow-up to that story. While it does little to enhance my catch-as-catch-can style of practice, it once again recognizes a judge and prosecutor who went out of their ways to right a wrong.

Jim had, you may recall, unfortunately committed a crime while inebriated, a fairly serious crime. The prosecutor handling the case basically made a too-high offer, increased it, and pretty much wouldn’t budge. Judge Gold, then sitting in GA 23, trying to fashion a resolution, attempting to take into account the Department of Corrections’ good-time calculations, tweaked the offer in a way that was designed to give Jim a time-served sentence by taking a plea in April and imposing a sentence in August so Jim would be released on the day of sentencing. I agreed. The prosecutor agreed. I sold it to Jim. The deal was done.

Of course the deal fell apart. Oh, the plea was ok. So was the sentence. It was imposed exactly as the judge had promised. Unfortunately, the calculations were wrong. Shortly after sentence was imposed we learned that Jim, contrary to what he had been promised by me at the time of the plea, would have to do an additional three months at McDougal-Walker up in Suffield. I felt like the biggest bozo on the East Coast. This poor schnook was going to serve more time than I had promised. To make matters worse, I had failed to put on the record at the time of plea that the intention of all was time-served.

The solution was fairly simple, or so I thought. I filled out a form Motion to Reduce Sentence. Because the “max” was more than three years, the prosecutor had to literally “sign off” on the Motion, agreeing that Judge Gold could act on the Motion. No problem. What was right was right. I had screwed up. The client was going to get screwed. The remedy was simple. The judge was on board. All it would take was the prosecutor’s signature.

The solution was not so easy. My adversary refused to sign. It was “unfortunate,” counsel observed, but he would not sign. Without that signature Judge Gold could not correct the sentence. He observed that it would be the right thing to do, but Mr. You’re Not the Boss of Me refused. It was not his “practice” to do so. I have rarely been so angry. At myself, certainly. I should have been more careful. I should have made a record. And I was disappointed, too, because I had misplaced the trust I had developed in over more than thirty years of dealing with adversaries who were tough but fair. I had misled my client by trusting others. And he was hurt by it.

What to do. I stewed. I steamed. I even researched- the last act of a desperate lawyer. I thought of a Motion to Set Aside the Plea, but of course the Court, once sentence was imposed, did not have jurisdiction. I considered a habeas against myself for ineffective assistance, but by the time that got heard Jim would have been released. I was PO’d beyond belief but most of all I was completely stymied. This was something even beyond the power of St. Jude to remedy.

Oh, ye of little faith. There are times when good fortune saves us from ourselves. The problem, completely without my doing, came to the attention of Mike Dearington, New Haven’s State’s Attorney, a disciple of the Old School of the practice of law. As Mike said, “What’s right is right.” The problem was solved. Over-ruling his obtuse and uncaring subordinate, Mike signed off on the Motion.

And so, on a sunny Friday in September, while traveling to Waterbury I got a call from my secretary. A penniless but surprised Jim was camped out in the lobby of my office. He wanted to know how I was going to get him home to Boston. A bus ticket was arranged and Jim was on his way home, one month worse for wear and completely unaware of how he had been blessed a second time by someone who knew how to do the right thing.

Of Mike Dearington I can only observe that he re-established the trust I had misplaced. Of his subordinate I can only believe he lives by the new, revised version of that old saying recently e-mailed me by a friend: Before you criticize someone you should walk a mile in his shoes. That way when you criticize him you will be a mile away and have his shoes.

It’s pretty funny, all right, but not so funny when put into practice.