It was a standard domestic violence scenario excepting one thing: The defendant, a tall white man in his 30’s, had only one good leg. His bad leg wasn’t a leg but a wooden prosthetic, which he periodically removed. While sitting next to Burke during his preliminary hearing, his leg had been removed so the deputy district attorney could use it while questioning the witness who also was the victim.
“Is this the leg the defendant hit you with?” asked the prosecutor.
“Yeah,” the witness replied. “My old man took it off and smacked me up alongside the head with it. Hurt like all get-out. Left a big black and blue mark. It’s gone now….”
“Your honor,” the prosecutor said, “move to enter this prosthetic leg into evidence as exhibit A.”
“Wait a minute,” the client said, “you’re gonna give me my leg back, ain’t ya? I need it to get about.”
Those in the gallery could be heard to quietly laugh, which Burke thought was a good thing. It would be difficult for the judge to hold his client to answer for a felony if the judge thought it was funny, and even the judge suppressed a grin.
“Have the people taken sufficient pictures and measurements?”
“Yes,” the prosecutor responded, “and I have provided them to the defense.”
“Mr. Burke, if I should return the leg to the defendant and the leg should be lost or misplaced, will you stipulate to the accuracy of the people’s pictures and measurements?”
Burke couldn’t help but milk it, “And if I don’t, he has to hop around until trial?”
“Ok, I guess so.”
“Mr. Burke, yes or no?”
“Yes. So stipulated.”
“And your client agrees?”
Burke looked at the client who, without prompting said, “I need my leg, so yeah, I stipulate. Does that mean agree?”
“Yes, Mr. Scoggins,” the judge said, “it means if you lose your leg and this case goes to trial the pictures can be shown at the trial as a representation. Madam Clerk, enter the leg as Exhibit A and have the bailiff return it to the Defendant. Mr. Prosecutor, you may return to your examination.”
“Thank you. Now Mrs. Scoggins, you say the defendant hit you with the leg. Did it leave a mark?”
This was an important turning point. If it left a mark, a black and blue contusion, it would be a felony. No mark, a misdemeanor.
“Big ol’ black and blue mark all across the side of my face.”
“And what happened next?” the prosecutor asked.
“He hit me again and again. A couple, three, four times. Marked me up some more. Then he lost his balance. And he fell.”
“Did you call the police?”
“Yes. A couple of weeks later. I made out a report. That time he just pushed me down. But I told them about the previous time and they charged him with that too.”
“What happened next?”
“They took him to jail but then they let him out ‘cuz they didn’t know what to do with a one legged man in jail. But he’s been restrained from being around me so I don’t know where he is living now.”
“You’re just mad cuz I was going to move out,” the client shouted, “You just wan…”
“Mr. Burke, control your client,” the judge interjected, “or I’ll hold your client in contempt.”
Burke leaned toward his client, patted him on the shoulder, and whispered to him, “Dude, settle down. Our goal is to keep you out of jail.” Burke settled back into his slightly uncomfortable waiting room-style chair (the kind with metal legs, a padded seat and back, and no wheels) and his thoughts drifted.
Judge Rita Billings had been in felony domestic violence court for over two years and was burnt out on the subject. It wasn’t that she was a bad judge but rather she was a bored judge. She was tired of prosecutors on crusades, whiny clients, defense attorneys whom she thought believed everything their clients said, defendants who were incapable of keeping hands to themselves, and mostly dealing with the same four cases over and over again. They were:
- Partners in some sort of relationship — usually living together but sometimes married and sometimes just dating — argue over a relatively trivial matter, over money, or children, or just the stress of day-to-day living. Nobody seems to know who pushes or slaps whom first but he is usually bigger, has been in actual fights, and pushes and punches a lot harder. She has a mark, and he is arrested. She doesn’t really want him to go to jail, especially if he has a job, so she doesn’t show up at court and doesn’t testify. Eventually, charges are dropped, he is released, restraining orders are cancelled, and he goes home, until the next time.
- He wants to leave. She doesn’t want him to leave and blocks the doorway. He shoves her out of the way. She loses her balance, trips, and smashes her face on a coffee table or an end table or some other table, which leaves a mark on her face. He is arrested for felony spousal abuse and taken to jail.
- They have a serious argument over him and his girlfriend or her and her boyfriend, and a physical fight erupts. She gets a bruise and calls the police but then forgives him. She doesn’t want him in prison and doesn’t testify. He is released and goes home till the next time.
- He has a bad day at work, kicks the dog and beats her up. Nobody knows why. He is just an asshole who beats people up. She happens to be available. She doesn’t testify because, “I love him and he said he would change.” He doesn’t.
Everyone wanted to blame something or someone, and alcohol seemed to be the easiest target. But that did a disservice to drunks everywhere who didn’t beat their spouses. The problem was that prosecution of particular crimes came in and out of style like clothing or cars. One year it was crack cocaine, the next it was crimes against old people. This was the judge’s first assault with a wooden leg case.
Although Burke was new to the Fresno County Office of the Public Defender, he was in his fifties. Because his father had been a crime reporter then a city editor for a metropolitan newspaper, Burke had been reading newspapers for a long time and had seen the fashionable wave follow a pattern: Bored city editor needed to fill space and needed something to attract readers. Bored city editor called bored crime reporter, said he needed copy, and asked what can be used. Crime reporter’s sister’s brother-in-law was going through a nasty divorce and was arrested for smacking his wife around, so crime reporter said he’d write a series on a crime spree of domestic violence. The series was written, published, and even won several journalism awards.
Local Fresno prosecutor read the award-winning series and decided to apply for a federal grant to create a domestic violence team to more fully prosecute wife beaters. A team of two prosecutors, three police officers and a district attorney investigator was created, which meant two more prosecutors, three more cops (nobody knew why the police got the extra hire, but it just happened), and an investigator were hired.
No money was provided for defense attorneys. Burke decided giving more money for defense would just have made getting convictions and guilty pleas harder to get which would have made the prosecutor and police look bad. Besides, most people, including judges and prosecutors, figured if a person got arrested they were probably guilty so why muck up the system with unnecessary trials? The fewer public defenders, the less time spent on defense work, the fewer trials there were, and the more guilty pleas would be entered on the books.
That way, he thought, the great non-Constitutional goal of the American criminal justice industry would be achieved: Calendars would be moved, defendants would plead guilty to felonies and would be disenfranchised, prisons would be built and filled, and jobs would be created.
There was one simple problem: Crime was down. Way down. Burke had the somewhat unfortunate ability to remember most things he read. After leaving corporate law, he began reading about criminal law and read it was way down. He had read that in 1990 there were around 2,605 murders in New York City but in 2014 there were over 2,000 fewer.
It occurred to Burke his clients weren’t simple-minded criminals but instead they were brain damage victims. They were both victims and victimizers. When oil corporations began putting lead in gas, and car makers began making cars that ran on leaded gasoline, the government built more prisons and fewer schools and hired more police than teachers. College tuition rose, students went into debt, and America housed more prisoners than any other nation in the world.
The judge commanded Burke’s attention back to the preliminary hearing, “Mr. Burke? Mr. Burke, cross-exam?”
“You didn’t take any pictures of your bruises?” Burke asked.
“Not the time he hit me with his leg. And the second time they didn’t come out. But they were there. I got thick skin and don’t bruise easy”.
Burke had no idea how having thick skin mattered or what she even meant. She was light-skinned and blond. But he decided too much money for building prisons and hiring cops and not enough money for building schools and hiring teachers created people like her.
“No further questions.”
“Does the prosecution have a motion?”
‘Yes,” said the Deputy DA. “We ask defendant be held to answer for felony violation of Penal Code section 275.5, spousal or abuse of a significant other.”
“Does the defendant have a motion?”
“Yes,” Burke said. “Motion to dismiss for lack of any evidence or at the very least reduce this to a misdemeanor pursuant to PC 17(b).”
Burke thought his best chance was a reduction to a misdemeanor, at least for the humor value.
“I think something happened here,” the judge said, “but I don’t think there has been any evidence of felony behavior. I order this reduced to a misdemeanor and have this case sent to misdemeanor court.”
The case would eventually evaporate into a mist of absurdity with his client going to some program, not to make him better but to make it look like everybody was doing something, and until then the judges, cops, prosecutors and defense attorneys would still have work. Burke returned to his earlier thoughts and concluded: If we pass enough laws to make enough things illegal, we have to hire enough cops to arrest suspects, build enough jails and prisons to hold them, hire a few attorneys to defend them, prosecutors to prosecute them, and finally judges to judge them. It creates well-paying jobs.
The point wasn’t to stop crime, but to make sure everyone kept the system chugging along.