Oct
22

Judge Gleeson Bends Rules -- Gets It Right

I can never really tell when a client is serious about suicide. My hunch is that those who talk about it won’t do it. It’s the silent types who from time to time cross that dark line. It is devastating when they do so. In every case, you look back for signs, cues and portents. Sure, more could have been done to prevent the self-destruction.

In a criminal defense lawyer’s office, however, it is easy enough to understand why folks destroy themselves. The criminal justice system is savage. A minor violation of the law can destroy a person for a lifetime. Too often, the world at large cares not a whit: Didn’t the defendant bring it on himself?

So when a client talked about killing himself the other day, I was unsure what to do. Should I report him to the police and have him taken into custody under an emergency hold?

Police have the authority to take a person into custody and to take them to a hospital when they have probable cause, or some good reason, to believe that the person is an imminent, or immediate, risk of harm to him or her self. Upon arrival at the hospital, a physician can sign a certificate requiring that the person be held for up to 15 days. A committee can petition the probate court for early release, and a hearing will be held in the hospital itself.

Years ago, a client of mine in custody threatened to kill himself. I thought his threat serous enough to report to prison authorities. He placed on a suicide watch.

After he was released and returned to general custody, we talked about my decision. He seemed to understand.

A couple months later, I again placed him on suicide watch. Weeks afterward, he told me he was angry at me for doing so. He had no privacy and found the experience humiliating. I explained that his life was in my hands, and I could not stand by and watch him destroy himself. Again, he understood.

But as he faced the final decision about whether to accept a plea offer or go to trial, he grew quiet.

“I am afraid to talk to you,” he said.

“Why?” I asked.

“You might put me on suicide watch.”

Given his options — a long prison term or an unwinnable trial and even longer sentence upon conviction, suicide suddenly seemed less irrational. We were in the valley of the shadow of death trying to distinguish black despair from utter darkness.

I told the client I would not place him on a watch again. I fully understood his predicament.

I can’t say more about the client or his case. What I’ve reported here is generic enough to avoid violating the attorney-client privilege. Suffice it to say, the client is alive, somewhere; at least the last I knew, he was alive.

These dark thoughts came unbidden this week when I read about a courageous federal judge in Brooklyn, New York, a man named John Gleeson. He took the extraordinary step of expunging — or hiding from public view — the criminal record of a woman he had previously sentenced to probation for a minor theft.

I wish there were more judges like Judge Gleeson.

The defendant was a woman who served as a minor participant in an insurance fraud scheme that resulted in a grand total of $2,500 to the woman. It was a nonviolent crime, and it was her first offense. 

What stuns about Judge Gleeson’s decision is that federal law is silent about the ability of a judge to expunge a criminal conviction. The judge took it upon himself to see that justice was done to this woman. It appears to be the first time ever a federal judge has done such a thing.

As many as one-quarter of all adults in the United States bear the scarlet “F” as a result of a criminal conviction. Most have long since paid their debt to society. Requiring them to bear this mark of public shame merely diminishes their prospects and serves no just purpose. A person with a felony conviction often loses the right to vote, to obtain public benefits, including housing, and loses the right to possess certain licenses.

Lawyers are taught in law school that there are four purposes to be considered in imposing a criminal sentence: specific deterrence, or preventing the actual defendant from breaking the law again; general deterrence, or scaring others about the consequences of crime; punishment; and rehabilitation.

These goals are, in the overwhelming majority of cases, easily served with a short sentence behind bars or no imprisonment at all. What sense does it make to stigmatize a person who has been deterred, rehabilitated and adequately punished? It is just plain mean-spirited and spiteful.

Federal prosecutors have vowed to fight Judge Gleeson’s exercise of liberality. The Justice Department has accused him of trying to “edit” history. From under what rock did these ministers of justice crawl?

I can understand prosecutors taking a dim view of judicial creativity. From the standpoint of legal hygiene, Judge Gleeson’s venture into uncharted territory raises serious questions about the separation of powers.

But the federal penal code is a top-heavy behemoth. In most state criminal laws, there are a host of misdemeanors related to felony charges. Plea bargaining in the state system often involved finding a lesser charge to cover a more serious allegation. In the federal system, everyone is a felon.

That’s simply unjust.

The Justice Department should stand down and not take an appeal of Judge Gleeson’s expungement order. Sure, it’s irregular, but sometimes it takes a little creativity to get justice done in the courtroom.

I’ve had clients released from prison contemplate suicide because of the harshness of the world they face. As I listen to them, I understand their plight.

Judge Gleeson’s creativity is commendable. I hope Connecticut’s judges follow suit. It could save lives. 

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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