Monday, April 26, 2010
My Life As A Crime Fighter: Absolute Prosecutorial Discretion – Part 2
Note: This narrative was created from three true stories. Each character is a combination of more than one real person. I changed names and story elements to preserve the privacy of individuals.
Part 1 of this story can be found HERE.
The story so far
My nephew, Samuel Anders, was arrested, at gun point, on a charge of domestic violence. His wife, Kara Thrace, called 911 after she was pushed by Samuel and fell over a chair. The 911 dispatcher asked if there was a firearm in the house. She answered, “Yes,” but didn't say that the pistol was hers, and that Samuel did not know where she hid it, under lock and key. The introduction of a firearm into this situation resulted in six police cars and a dozen officers surrounding the house and calling for Samuel to come out with his hands raised in the air.
Samuel was going to plead guilty, enroll in an anger management class, get counseling, be placed on probation for a year, and pay a fine. He called me to borrow $550 for his fine. When he described the events to me, it was clear he committed no crime. Kara overreacted to Samuel's leaving the house to avoid an argument with her. She ran up to him, blocked his exit, and thrust herself in his face while shouting insults. Samuel, reacting involuntarily and instinctively, threw up his hands. Kara was unhurt, locked herself in her bedroom, and called the police.
Following Samuel's release from jail, Kara went to the Assistant County Attorney, Cassandra Misandre, and asked that the charges be dropped. Kara explained she overreacted. She told of being emotionally distraught over her sister's death, she was depressed, and had been in severe pain from an anal fissure, for three weeks, at the time of the pushing incident. Misandre would not drop the charges.
I found a lawyer for Samuel and told him I would take care of all the legal bills. I retained Huntsville, Alabama attorney John Hunt “Thunderbolt” Morgan.
“The South Shall Rise Again!”
I flew to Huntsville and met Samuel and Kara at Thunderbolt's Law Office. His assistant seated us, and took orders for coffee. I stood to admire the wall of awards, and photographs. In the center was a daguerreotype photo of John Hunt “Thunderbolt” Morgan, a General for the Confederacy in the Civil War. He was a native of Huntsville, and famous as a cavalry officer. Samuel's attorney was a direct descendant of General Morgan.
The honorifics were a testimony to his role in the new South. He was acknowledged for service on an Inter-faith council, and there was a certificate of appreciation from the N.A.A.C.P. He was member of several committees for battered women, abused children, and foster care. Judging by the photographs, he knew every politician, police chief, and religious leader in Alabama. Soon the assistant beckoned, “Mr. Morgan will see you now,” and pointed to the door of Thunderbolt's office. We put down our coffee, filed in, and the assistant closed the door behind us.
Who Did What to Whom?
We quickly got down to business. Samuel told the whole story [Link here]. If he forgot an important detail, or I felt there was more to be learned, I would ask him a question, so he could elaborate. Kara sat a bit behind Samuel and me. She did not utter a single word from the time she greeted Thunderbolt until she gave a him a perfunctory “Good bye” upon leaving the office.
Thunderbolt did not say a word during Samuel's narrative. He took notes, but mostly he sat up with focused attention. Samuel finished his story. He broke down and cried. I reached for the tissue box on Thunderbolt's desk and handed it to him. Samuel was speaking to Thunderbolt through his tears. He said, “I just don't want my wife to have to go through any more trouble. She's had a lot to deal with this past year, and I don't want to make her suffer any more.” Samuel regained his composure.
Thunderbolt asked Kara if she wanted to add anything. I turned to see her head shake and her mouth form a muted “No.” At this point he focused solely on my nephew. He explained to Samuel that he did nothing wrong, and certainly did not commit a crime. He told Samuel that he was assaulted by Kara, and that pushing Kara was an involuntary, instinctive reaction of self defense. He said, “At the time, Kara was under an enormous amount of stress and in a great deal of pain. I understand. But her behavior led directly to your reaction which is not criminal, and not domestic violence.”
“Stop Breaking My Balls”
Thunderbolt picked up his phone, flicked his Rolodex, and dialed Assistant County Attorney Cassandra Misandre. “Cassey. Johnny Morgan here … I don't usually catch you in your office. What's the matter? They don't have enough work for you?” After a bit of repartee, he said, “Look, I'm representing Samuel Anders on a charge of domestic violence, and I'm letting you know we are pleading 'Not Guilty.'” He was about to continue, but Misandre grabbed the conversation and wouldn't let go. He surrendered, sat back in his chair, rolled his eyes, and waited patiently for her to run out of air.
“Cassey, there's no case here, and you know it. You …” Her coil spring had a very fast regenerative cycle. He surrendered again. He gave us a look that was a silent plea, asking us if we could believe this. He had less patience this time. “What the hell are you talking about? There's no case. Stop breaking my balls! You arrested the wrong person. He's the victim.” Thunderbolt was telling her that it's easier and less costly simply to drop the charges. I don't know how many times he said, “There's no case here.” When he hung up the phone he said to Samuel, “She's going to make you jump through all the hoops. So we will show up at the Courthouse and enter your plea.”
“What happens after that?” Samuel asked. “And if she doesn't drop the charges?”
“This is ridiculous. She should have dropped the charges. I will talk to her face-to-face at the Courthouse and see if she's in a better mood. “You still enter a plea, which gives us time to see what's going on in the County prosecutor's office. I just don't understand this.”
Thunderbolt and Samuel discussed various contingencies and options. We left the office with Thunderbolt giving Samuel reassurances, telling him not to worry, and that he should just go about his normal business. I said my “Goodbyes” to Samuel and Kara and left for the airport for my flight home.
I flew to Huntsville the following week and caught up with everyone at the Courthouse. Samuel and Kara were alone. Thunderbolt arrived a half-hour earlier to talk to Cassandra Misandre. I took a stroll down a couple of corridors, following the muffled sound of a heated conversation behind closed doors. Signs on the doors read, “Attorney Conference Room.” While I could not make out the conversation, I did recognize Thunderbolt's voice. In spite of heavy muffling, you can always make out the word, “fuck.”
I returned to Samuel and Kara, and Thunderbolt caught up with us. He explained the situation. Misandre was not going to drop the charges. Samuel was worried and had a lot of questions. Thunderbolt said we would meet at his office after the arraignment. He wanted to get the plea entered, then set a trial date that would give him plenty of time to prepare a case and try to get the charges dropped.
Kara and I sat in the back of the courtroom and watched the brief proceedings. Thunderbolt kept interrupting the proceedings to lambaste the prosecutor. I've watched enough TV episodes of “Law and Order” to know this is a totally useless gesture at an arraignment. I learned that he was setting the tone for his courtroom battle with Misandre. He was getting a head start on intimidating her. Also, he was trying to imprint the judge's mind with Samuel's case. You never know if this judge is going to be involved at a later time, or even be assigned as the trial judge.
The General Prepares the Field for Battle
We walked up the street to Thunderbolt's office and sat in his conference room. His assistant took sandwich orders for lunch. He excused himself to attend to messages and phone calls. We were just about finished when he returned. Thunderbolt was focused and all business. He gave us pens and legal pads.
He asked a lot of detailed questions and then handed out assignments to Samuel and Kara so they could begin to collect evidence and character witnesses. They had to sign about a dozen release forms for documents like medical records, insurance reimbursements, mental health counseling, and the police. He instructed Kara to write a time line of all the bad events in her life in the 12 months before the pushing incident. “I don't want to read about anything good than happened. I only want the things that caused you problems.” he told her. “Write down all your doctor appointments and the reason. List all your medications. For the 30 days prior to the incident, I want to know your daily medication regimen, down to the dosage and time of day. Do either one of you use illegal drugs or non-prescribed controlled substances?” They were on the verge of saying, “No,” when he held up his hand to stop them. “Now, I don't want any bullshit! You tell me the truth.” They fessed up to smoking grass on occasion.
He looked at each of them, held them with an intense gaze, and said, “Kara, I have no reason to suspect that Samuel has been unfaithful to you. What I want to know is if you suspected him of being unfaithful at the time of the pushing incident. Do not tell me anything about before the incident or after.”“No, not at all. Like I told the prosecutor and the police, Samuel's been a great husband and step-father.”
He asked Samuel the same question. He gave the answer that Thunderbolt expected.
“Alright.” The General's descendant gave Samuel his assignments. Among these was collecting statements from other couples with whom they socialize and attend church. “Make sure you get statements from all of them.”
It was my turn. “You write a truthful, heart warming, story about your relationship with Samuel – not about your relationship with Kara. Don't say anything from the day of the pushing incident, and afterward.
“You are not writing this as a psychologist. This is not a psychological evaluation. This is about you talking about Samuel. But, make sure you put in the fact that you are a psychologist and have a PhD. Got it?”
“Here Come Da Judge”
I flew to Huntsville for the pre-trial conference with the judge. I waited with Samuel and Kara in a conference room. Samuel was greatly stressed, and worried sick over what might happen. Kara was a bit glum and reticent, as usual. Samuel stopped his pacing and sat down next to Kara. They were looking straight ahead, out a window at the brick side of a commercial building. “You know, I wouldn't be here if you hadn't told them about your gun. Why did you tell them?”
“What was I supposed to do? They asked me if there was a gun in the house.”
“You could have told them it was your gun and that I didn't know where the fuck it was."
“They didn't ask me!”
“You could have told them!”
“What are you getting angry at me for. It's over and done, so stop crying over spilled milk.”
“Fucking spilled milk! I could end up in jail with a criminal record and you call it fucking spilled milk!"
“Watch it mister! You're already down one!”
The tension was broken when Thunderbolt came in the door. “We are going to trial. The prosecutor said she would rather lose at trial than drop the charges.”
“But what did the judge say?” Samuel was fit to be tied.
Thunderbolt quoted the judge, the Honorable Laura Roslin. “Look Johnny, I think Cassey's going to have a very tough time with a jury. But, she wants to go to trial. There's nothing more I can do.”
Samuel wanted to know how the prosecutor could go ahead with a trial. Can't she be stopped, couldn't they sue her, bring her up on charges, go to the newspapers, tell her boss? Thunderbolt told him the County Attorney, alone, has the power to decide who gets prosecuted. “Unless you can prove that the prosecutor is taking a bribe, or sleeping with the defendant's spouse, there is no impeachment of the prosecutor's decision. This is what is known as absolute prosecutorial discretion.”
“You do and I'll shove....” Kara caught herself muttering and stopped. Thunderbolt turned to ask if she had said something, but she deflected the question with a slight shaking of her head, “No.” The room fell silent. Thunderbolt walked over to the window, his hands in his pockets, and looked out. He was mulling over a problem, trying to find a solution.
“Pssssst, I Got a Plan!”
“I need to confer with my client. The two of you go across the street and get a cup of coffee. When you come back, wait outside in the hall.” This was not a request. It was an order. We took our coffee to go, returned, and nursed our coffee in the corridor. Eventually, Thunderbolt opened the door, and called to Kara. She went inside and he closed the door.
Kara and Samuel came out and lingered in the doorway. Samuel said to her, “Don't worry. Everything is going to be alright. I promise”
“Are you sure?”
It took a few repetitions of “Don't worry,” and “Are you sure?” before Kara said “Okay.” She turned and walked toward me. Samuel returned to the conference room and closed the door. Kara walked past me, saying she was going home. Minutes later, Thunderbolt and Samuel emerged.
“Norman, I need your help. Come with us, we're going to police department.” I asked no questions, and fell into lockstep behind Thunderbolt. The lobby of the police building was fortified against assault teams armed with automatic weapons, hand grenades, and rockets. This was serious security. Or so I thought.
Thunderbolt strode in like he owned the place, greeting every police officer by first name. He hardly broke his stride as locked doors buzzed open, as if by magic. Every police officer greeted him by his first name, and with a big smile. We made our way to an inside area of cubicles.
“Hey Bobby, how are you?”
“Great Johnny. What do hear?”
“Nothing but the rain.”
“Then grab your fishing pole and bring in the cat.”
Thunderbolt got down to business. The plan was to force Misandre's hand. Bobby helped them fill out a criminal complaint for assault, naming Kara as the offender. “I want you to give this a file number, but don't enter it in the computer. If you don't hear from me by 4:45 PM, then go ahead and enter it. Fax this over to Cassey's office now. Follow up with a phone call to her assistant and have it delivered to Cassey, immediately. She is sure to call you back right away. Tell her I asked you to fax it over. If she asks if it's in the computer, tell her I said to go ahead and enter it, if you don't hear from me by 4:45 PM. If she asks for me, tell her I returned to my office.”
“Not a problem.”
“This here is Norman Costa. He is not a party to this case. He's going to sit here and not bother anybody. After Cassey calls you to confirm everything, let Norman know and he'll go back to my office. If nothing happens by 4:45 PM, he will leave, and you can enter the file into the system.”
Thunderbolt and Samuel returned to his office. It wasn't 20 minutes before Bobby let me know that Misandre called and confirmed the particulars. I thanked him and left.
The Fall Out
Samuel was sobbing when I got back to Thunderbolt's office. Assistant prosecutor Misandre had dropped the charges, and said Kara would not be prosecuted. Thunderbolt asked his assistant to get a towel. He put his hands on Samuel's shoulders and said they were going to step out of the office to give him some privacy. “You did a great job today. When you feel up to it, Call Kara to give her the good news.”
A few months later, Assistant County Attorney Cassandra Misandre was transferred to the Civil Division. Thunderbolt spoke to a number of attorneys, and judges. Some of the defense attorneys in Huntsville had had serious problems with Misandre's prosecutions, resulting in unwarranted pleas to lesser charges. A retired judge was tapped to talk to the County Attorney. Her transfer would not be accompanied by any kind of discipline or documentation, and there would be no review of prior cases.In the following year I heard very little from Samuel. In the past three months it ceased all together. Samuel, Kara, and I were Facebook Friends. I checked my Friends list. I had been defriended.
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