My Life As A Crime Fighter: Absolute Prosecutorial Discretion – Part 1

My Life As A Crime Fighter: Absolute Prosecutorial Discretion – Part 1

Norman Costa

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.

Prisoners_orange_jump_suits

Call in your troubles

My nephew, Samuel, called me from his home in Huntsville, Alabama at eight o'clock in the morning, an unusual hour for him to phone. I stayed quiet and waited. After a moment or two he spoke. He was hesitant and uncomfortable, asking if he could borrow $550. I gave an immediate assurance that I would lend him the money, and then waited.

“Uncle Norman, I got arrested for domestic violence.”

“WHAT!”

It made no sense, at all. In a more subdued voice, I asked him to tell me what happened. He said that he had pushed his wife, Kara, and she had fallen over a chair. He said it was an accident; he didn't mean to do it; but, it was his fault since he pushed her. Samuel was going to plead guilty to a criminal offense, agree to probation and anger management counseling, and pay a fine of $550. After twelve months his record would be wiped clean, if there were no more incidents.

And then Samuel started to cry. Inside a few seconds he was sobbing.

My nephew and I are close, and I felt very badly for him. I assured him that I would help, that I would stand by him, and that I loved him very much. He regained his composure, at least enough to tell me more. Then the Samuel I knew began to emerge. He was not crying for himself. He was worried about Kara. The past year had been extremely hard for her. Kara had taken a three month leave of absence from work, unpaid, to care for her sister, who eventually succumbed to breast cancer.

Samuel_anders_and_kara_thrace3

At the time of the pushing incident, for at least three weeks, Kara had been dealing with a recalcitrant, and very painful, anal fissure. The pain would ebb and flow throughout the day. Most days were manageable, but a few were so difficult she was barely able to function. Since the incident, Kara went to see a psychiatrist who prescribed an antidepressant for both pain management and depression. Samuel would sacrifice anything and everything, even plead guilty to a crime, if it would spare Kara any more distress.

Samuel Anders and Kara Thrace had been together for eight years. They kept their respective last names, because Kara had a son, Peter, from a prior marriage. Samuel grew up in an apartment in Yonkers, New York. Kara came from a family ranch, some distance outside of Fort Worth, Texas. Yep, she could ride, rope, and shoot. Nope, Samuel did not ride, rope, or shoot, nor was he interested. Kara had an intriguing, and quirky, comeback that she used in conversation. If anyone used a foreign expression (Merci beaucoup, madame. – Ach du lieber! – La Via Dolorosa), she would interject, “You do, and I'll shove it up your ass!” This applied, as well, to unusual words or phrases like “considerable thermal inertia,” or “unknown insalubrious environment.” She was not a big woman, but I had a healthy respect for her. I sensed that if anyone tried to mess with her, she would, indeed, shove something up their ass.

Push comes to shove

Samuel and Kara shared all household responsibilities. One Sunday afternoon, it was Samuel's turn to make dinner. He was a half-hour late in starting dinner, and a half-hour late serving the food. Kara and Peter were seated for a half-hour, waiting for Samuel to escort his plattered roast chicken to the table. He sat down, apologized again for being late, and lead his small family in a benediction over the food.

Samuel sensed a tension at the table. He tried to divert everyone from whatever was creating the unpleasantness that hung heavy over the table. Before he could finish his pleasantries, Kara blurted out a scalding reproach to Samuel for not caring enough to get dinner served on time. The words, themselves, were harsh enough, but the delivery was charged with a great deal of contempt. Samuel apologized again, and tried to lead them to a better place for conversation. Kara was silent, and everyone started to eat. After some moments, Kara hurled another invective, this time honed with a nastier edge, and laced with a caustic. He renewed his apology and tried, once more, to change the mood at the table. It didn't help that Peter would add his own barbs, modeling his delivery from his mother's example.

Come_out_with_your_hands_up

This sequence of shooting arrows, and then deflecting them, cycled a few times. Samuel realized that there was nothing he could do, at this time, to defuse the situation. He had not raised his voice, nor argued with his wife. My nephew rose quietly, and said he was going for a walk. He headed toward the door to get his coat and leave. Kara jumped out of her seat, sped to intercept him, and got between him and the door. She startled him by getting up-in-his-face, literally, and shouting some pretty venomous words. In scarcely an instant, instinctively he threw up his arms, his open palms landing on the fronts of her shoulders. Simultaneously, Samuel was backing away from his wife. But, his involuntary reflex was so swift, Kara was knocked backwards and fell over a chair.

Kara was not injured. She got up, retreated to her bedroom, and locked the door. Peter said something unpleasant to Samuel and went into his bedroom, closing the door behind him. Samuel was disoriented by the suddenness of events, and remained so for a minute or two. He recovered his focus, assessed the situation, and concluded there was no longer a need to exit the house. It was quiet, and it seemed the worst was over. Samuel thought there was no reason to deny himself a Sunday dinner, so he sat down to finish his meal.

“All units, code 14.”

Samuel ate in silence. He thought back to something Kara told him, when they were dating. From the time she was 11 years old, she would throw things at her brother (older by 6 years), and then run into her bedroom and lock the door. On one occasion she split his head open with a can of soup.

I always thought there was more to that story.

Eventually, Kara emerged from her bedroom, retrieved Peter, and walked quickly to the door. Not a word was said. They took their coats from the hooks near the door, Kara grabbed her keys, and they were out the door before they could put on their coats. Samuel continued eating his dinner, and thought to himself that Kara and Peter were missing a great roasted chicken.

“Samuel Anders, this is the police. Come to the front door, and open it. Then come out, slowly, with your hands raised.”

As my nephew described the following scene, I had to cover the mouthpiece on my phone. I couldn't help it, but I was laughing at the absurdity of what happened. If not for the fact that this was very traumatic for my nephew, it could have been comical or surreal.

Samuel did not know that Kara called 911 from her bedroom. The police dispatcher asked her if there were any weapons in the house. She said, “Yes.” That changed everything! What she did not tell the police was that the sole weapon was her own hand gun, and that her husband did not know where she hid it, under lock and key.

Eventually, Samuel gathered his wits about him, walked to the door, opened it, and slowly walked onto a Hollywood film set – except there were no cameras rolling, and there were no actors among the cast. Officers were crouched behind six police cars with pistols and rifles aimed in his direction; red and blue lights were flashing and spinning; and the loud speaker commanded him with great authority. “Jesus Christ Almighty!” I said to myself.

Cuffed_and_under_arrest

Samuel got face down on his walkway, spread eagle. He was put in handcuffs, searched, arrested, and read his rights. He was dazed and disoriented. He had no idea if Kara and Peter were there, and witnessed him being taken into custody. Standing up against a police car, Samuel tried to explain what happened, that it was an accident, and certainly unintentional. He admitted that he pushed his wife, and she fell over a chair.

Then the officer interrogating him said something ominous. “Anytime we get a Code 14, and have to take the trouble to come out here like this, someone, sure as hell, is going to jail.”

My nephew has no recollection of what happened next, until he found himself with two other men, confined in a cinder block room in a police station. He had no idea where the police station was located. He was wearing a flimsy orange jump suit, flip flops, and his own underwear and socks. It was winter and the room was unheated. He could see a guard, on the other side of a thick glass window, attending to paper work and telephone calls. Otherwise, he had no outside-awareness from this room. There was a television suspended from the ceiling. It was on. There was a large sign, in block lettering, under the television that read, “DO NOT TOUCH THE CONTROLS ON THIS TELEVISION!”

The two others looked as if they came right out of central casting in Hollywood. Both were tall and heavy. One was bald, and the other sported an unkempt mullet. They were menacingly bearded, unwashed, they smelled, and had an abundance of tattoos. In spite of the posted prohibition, the two changed channels and adjusted the volume as they pleased.

It was at this moment, Samuel told me, that he was shocked out of his daze and regained his awareness. He finally grasped the situation, where he was, and what had happened. Looking at the two in confinement with him, he realized that he was well out of his league. He was there overnight before Kara bailed him out. Samuel was hypothermic. It took a full 24 hours before he felt comfortably warm, and he was free of intermittent shivers.

Cassandra_on_vase

“Let's Set the Record Straight!”

“Let's Not!”

Over the course of several weeks, Kara tried to get the police, and the Assistant County Attorney [ACA] to drop the charges against her husband. A recent change in the law pertaining to domestic violence prevented charges being dropped simply at the request of the victim. The police had said it was out of their hands, and they deferred to the ACA.

She met with the ACA and described her own situation, her physical pain, and her depression. She admitted she overreacted, that it was an accident, and that Samuel did not push her with intent. She explained how she got in his face, forcing Samuel to react instinctively. She went on, at length, telling how lucky she was to have a husband who was so loving, and gentle. They had started marriage counseling within days of his release from confinement.

The ACA, a young woman named Cassandra Misandre, refused to drop the charges. It didn't matter how much Kara pleaded on his behalf. She explained the options. Samuel could plead guilty to a criminal offense, and accept a program of counseling, probation that might lead to a cleaning of his record, and pay a $550 fine. The only other choice was to plead not guilty, go to trial, and risk a verdict that could send him to prison, without the possibility of clearing his record. Ms. Misandre made it clear that she would prosecute this case, vigorously.

“I don't need a lawyer!”

“Yes you do!”

My nephew is a very nice guy. He's sociable, friendly, gentle, has a generous spirit, and totally devoted to Kara. He thinks concretely, and his opinions are easily formed by the last person with whom he had a conversation.

I asked Samuel if he had spoken to a lawyer. He said, “No.” He didn't see that it would do any good, because the police had already explained his options. The only thing left for him to do, as he saw it, was to raise $550 for his fine, plead guilty, and begin his probation and counseling program.

I spent a great deal of time explaining the consequences of pleading guilty to domestic violence. If he applied for a job, he would have to disclose his arrest, and explain the circumstances, for many years to come. There was no guarantee that his record would be wiped clean, because if there were a new complaint, or the slightest infraction, he would automatically have a permanent criminal record. By pleading guilty he was giving up his right to appeal or change his plea.

Samuel said he understood what I was saying, but he didn't want to put Kara through any more distress. Besides, he didn't have any money for a lawyer. Regardless, I would help and support him in whatever he chose to do. I got his agreement that he would not do anything for a couple of days.

I found an experienced attorney in Huntsville, John Hunt “Thunderbolt” Morgan. We discussed my nephew's case, and said he would be happy to represent him. He would see Samuel, as soon as possible. He had a date for the following Tuesday in Thunderbolt's office, and I would fly there, from New York, to meet him.

I explained to an unbelieving Samuel what Thunderbolt had told me about criminal assault. By definition, Kara's actions could actually be interpreted as criminal assault. Criminal assault does not require the offender to make physical contact with the victim. A person who is cowering under a threat, and the towering menace of a bully, who feels in danger of being harmed, is a victim of assault. In fact, Samuel could file a charge against Kara for criminal assault. Of course, he wouldn't. I impressed upon him that he did not commit a crime. However, he would need the advice of a lawyer who was experienced in criminal law and domestic violence.

It had never occurred to Samuel that he was, in fact, not guilty of a criminal offense, not to mention that the law might construe Kara as the perpetrator of an assault. Thunderbolt said that Samuel's reaction was one of self-defense. In Texas, Kara's home state, the shooting and killing of another person was defensible when the other person violated your personal space.

[Please return on April 26, 2010 for Part 2 and the conclusion of the story.]

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