“I’ll do my best,” Marc assured her. “I don’t think there’s any point for Joey to go to jail. His record is fairly good, his family situation is good. Let’s see what the Judge has to say about it.”
“Can’t we appeal or something?”
“Yes, if you want, we can appeal the decision the Judge made at the hearing,” said Marc. “We can even appeal the sentence if it’s harsh. Let’s see what happens here first.”
Presently, the Maricyk case was called. Maricyk was brought out from the bull pen and stood to Marc’s left as the clerk arraigned him for sentence.
“Mister Maricyk, is there any legal reason why sentence should not now be imposed upon you?” the clerk said.
“Maricyk looked at Marc.
“No,” Marc whispered.
“No.”
“Do you wish to speak or do you want your lawyer to speak for you?”
“My lawyer can speak.”
“Let me tell you this to save time,” said the Judge. “The Probation Report shows the defendant to associate with undesirable people. His work record is spotty. They’ve suggested a year in jail. He was indicted on a class E felony where he could have gotten four years, but he was permitted to plead to a misdemeanor with the maximum sentence of a year. So he’s way ahead of the game already, Counselor. I’m inclined, however, toward nine months. Now, knowing that, go ahead,” the Judge nodded.
Marc knew now that Maricyk was headed to a jail sentence. So did Maricyk. He muttered a curse under his breath.
“Your Honor, I know you have a Probation Report before you,” said Marc. “But I suggest that the information it contains is apparently incorrect. My client has informed me that his work record is not spotty, but rather he is employed in a seasonal line of work—swimming pool construction—and business presently—even during the summer—is somewhat slow because of general economic conditions. The defendant has been working for the same company for two years now—since he resigned from the Police Department.”
“That’s another thing,” said the Judge. “We can’t say your client didn’t realize what he was doing. He’s a former policeman. He knew fully what he was doing, and did it anyway. That doesn’t speak well for him. Go ahead, anything else?”
“Yes, Your Honor,” said Marc. “You have indicated an inclination to jail the defendant …”
“That’s right.”
“I do not, nor have I ever been able to comprehend the point of purpose of a jail sentence for a person in the defendant’s position. In the first place, if jail is for the purpose of rehabilitating a defendant, to groom him for taking a useful place in society, which our penologists all say is the purpose of jail, then it should first be ascertained that the defendant is in need of rehabilitation. According to further penological studies, it has been found as an actual fact that more than sixty-five per cent of those who commit their first crime will never commit another crime in their life, regardless of sentence, whether you sentence them to one day or one year or even ten years in jail. In other words, there’s a self-rehabilitation factor, an awakening, that occurs in almost two thirds of people accused of committing a crime.
“The other thirty-five per cent,” Marc continued, “no matter what sentence the courts impose, will commit a crime—regardless of how much time they spend in jail—the moment they’re released they’ll stick up the taxi driver on the way home. These last are the incorrigibles.”
The Judge was listening patiently.
“Now to put the defendant in the least complimentary light, let me say that we don’t know what this defendant will do in the future, Your Honor. Yet, if, in fact, he is one of those sixty-five per cent who will never commit another crime, then he’s already rehabilitated and jail will serve no useful purpose. There’s no need for vindication or denunciation by the People. That’s been done. The man has a record now, he’s branded for life. Since he has no background of violence; since this is not a crime of violence, he’ll be no danger to the community if he’s in the street. Therefore, I respectfully suggest he should be put on probation and permitted to continue his role in society.
“We shouldn’t assume that this defendant belongs in the other category, in the incorrigible category. For, indeed, he does not. He has never committed one crime before, much less two. I imagine one could speculate about a defendant in this position and say he’ll probably become an incorrigible. But that’s just guess work, speculation. I can’t say accurately, and most respectfully, Judge, neither can you. No one can. He’s never been in this kind of trouble before. He has no track record to look at.
“If you do give him a chance on probation, however, Your Honor, no matter which category he fits in, there’s no danger to the community. First of all, as I’ve said, the defendant’s not charged with a crime of violence. Second, if he’s on probation, the minute he steps across the line, even a fraction of an inch, you can always revoke his probation and send him to jail both for this crime and whatever else he might have done. You will—so to say—still have your hooks in the defendant if he doesn’t live up to the confidence that you would display by putting him on probation. Thus, it seems pointless, Your Honor, to send this defendant to jail when he may have already learned his lesson completely, when he may now, as a result of this experience, be ready to assume a useful, gainful role in society. If we do not know the true answer, Your Honor, if we are to make a decision, let us lean to the side of mercy, on the side of lenience. You can always correct any mistakes by revoking probation. You can’t give him the time back.”
“Every lawyer comes up here and says don’t send my client to jail, Mister Conte. We might as well not send anybody to jail then,” said the Judge.
“Perhaps we should not indeed, Your Honor,” said Marc. “Except for the most hardened criminals, whose propensities for violence and criminality are already manifest. We should overcome those archaic concepts that jails are absolutely necessary in dealing with all criminal matters. A man who fails to file income tax is a cheat. He can be branded with a record, officially, declared a cheat, but is jail necessary? A man in the position of my defendant—an alleged bribe on a traffic ticket—where is jail required? He has injured no one physically. The community is not endangered by his presence. Yes, there was a crime. Is society not sufficiently interested in one of its citizens to see if perhaps the man has learned his lesson without jail?
“I pose this question,” Marc continued strongly, his voice full, “why jail? To what end? For what purpose? If in fact the defendant falls within that category of people who will never commit another crime, then what purpose is or shall be served by jail?”
“If what you say is so about those studies,” said the Judge, “perhaps your client is in the thirty-five per cent category.”
“Does Your Honor suggest we needlessly send two men to jail who shouldn’t be there along with every one man who should be there? Is that just, reasonable, or fair?”
The Judge shook his head. “He’s got to do some time. He’s got a break on his plea already. You want me to give him a medal?”
“That’s not necessary, Your Honor,” said Marc. “I just want you to treat the defendant with fairness, with reason …”
“You’ve used that word twice. Are you saying that I’m unreasonable?” the Judge asked with annoyance.
“No, sir. Our system of sentencing, however, is unfair and unrealistic. We are not dealing with children, Your Honor,” said Marc. “When a parent reprimands a child, the purpose is to teach him the mores and morals of life. And so it is with the Court. Your purpose, is first to protect society, if such seems necessary, and second to help rehabilitate the defendant. In this case, society is not endangered by this defendant. So then the obligation of this Court is to aid the defendant in becoming again a law-abiding, useful part of society. But when a defendant does not need further rehabilitation than the stigma and humiliation of being a known criminal, then what is the proper function of the Court? Should the defenda
nt be sent to jail, merely because we have jails? Because we have to maintain a prison system? Is there some personal benefit that you get as a judge when the defendant goes to jail? Your Honor?”
“Are you seriously posing that question? Do you think I am personally benefiting from the defendant going to jail?” The Judge was outraged.
“No, I wasn’t asking the question seriously, Judge. Not as far as your personal benefit is concerned. But, if you’re not getting a benefit, and I’m not getting a benefit, and the clerk here isn’t either, nor is anyone else individually, if the individuals in society aren’t gaining a benefit from the defendant being sent to jail, then society collectively isn’t gaining a benefit either.
“Judge, I ask you this,” Marc continued. “If this man will never commit another crime in his life, although he is branded for the rest of his life with a criminal record, if he is ready to toe the mark in life, be a useful, gainfully employed citizen, will you still send him to jail?”
“I’ve already said he had to do some time, Mister Conte.”
“Is there something that I don’t see that is compelling a jail sentence, Judge?”
“We have professionals working in our Probation Department, Mister Conte,” said the Judge. “And they know as much—maybe more—as your scientists and penologists sitting in their laboratories. The Probation Department is getting paid to work on these reports in aid of the Court. They’ve recommended one year in this case. Now I’m sure they’re not out trying to hurt this defendant. They’re doing their job, they’re trained, they know the penal system too, you know. And now I have to do my job. Do you have anything else to say?”
“Would anything I say cause you to change your mind, Judge?” asked Marc.
“No. I have to do a job and I’ll do it.”
“I have nothing further to say except that a system that blindly sends people to jail whether there is a reason for it or not, whether there is a benefit to be gained, a purpose to achieve, or not, is a system that is ludicrous and archaic. It must be updated and made to function in some useful, beneficial fashion, or it will cause its own destruction and do grave harm to both society and many helpless victims caught in its web.”
“You’ve made your record, Mister Conte. Nine months in the custody of the Department of Correction,” said the Judge. “Have you advised your client of his right to appeal, Counselor?”
“I have.”
The stenographer was recording all that was said on his stenotype machine.
“Very well,” said the Judge. “Next case.”
“Your Honor, before we do that,” said Marc. “I’d like to make an application to have bail set for the defendant Maricyk pending appeal.”
The Judge looked at Marc, his brow furrowed, then he looked at the clerk. “Come up, come up,” said the Judge, waving the clerk, Marc, and the assistant D.A to the bench. They all huddled at the edge of the bench. “What’s the point of setting bail?” the Judge asked. “Your man’s been in jail all this time. He didn’t make bail on the case.”
“I just want to have it set in the event that his wife may be able to raise bail for him, Your Honor,” replied Marc.
“Can I do that?” the Judge asked the clerk.
“The People aren’t going to consent to bail, Your Honor,” said the D.A.
“That D.A.’s consent isn’t really necessary,” said Marc. “The Court has inherent power to set bail with or without consent. However, I ask the Court to inquire of the District Attorney if there is some significant reason that he refuses to consent to the setting of a reasonable bail for this defendant?”
“The People are just not consenting to bail, that’s all,” said the D.A. He was young and had a thin, unsmiling face. “Your man was sentenced and we feel he should start his sentence.”
“You don’t know anything about this case,” said Marc, still facing the Judge. “In due deference to you, you’re just covering the Part for the day in case there are any problems. Supposing we appeal, and the defendant is victorious. Are you going to make up the time he has to spend in jail because of your whim about bail?”
The D.A. gave Marc an impatient look. “We don’t have to justify ourselves to defense counsel.”
“How about to the court and on the record?” Marc asked.
The clerk had taken a law book from the judge’s bench and was thumbing through the pages.
“Gentlemen, there’s no need for this,” said the Judge. “I don’t know if I can do it, but since bail has been set all along and the defendant hasn’t been able to make it anyway, I’m inclined to set a bail.” He looked at the D.A., moving his head in a “what-the-hell” motion.
“Here it is, Judge. Section 480.60,” said the clerk, putting the law book in front of the Judge.
The Judge read the section silently, his finger coursing and recoursing under the words, his eye following carefully. “This indicates that the application for bail must be made after a Notice of Appeal is served,” he said. “Have you already served your Notice of Appeal?”
“How could I have done that, Judge? You just sentenced the defendant a minute ago,” said Marc.
“I don’t think I can set bail without the notice being filed,” said the Judge, reading the statute again.
“You can set the bail contingent upon the service of a Notice of Appeal this afternoon,” said Marc.
The Judge looked doubtful. “No, the statute says it must be served first.”
“I’ll make it up by hand right here, Judge,” said Marc. “It won’t be fancy, but it’ll be correct.”
“I think that the motion has to be made in Part 31, Your Honor,” said the clerk.
“And it has to be on paper,” said the D.A. “We won’t go along with an oral application.”
“Judge, the section neither requires an application to be made in Part 31 or that it be written,” said Marc. “The section says merely that a Supreme Court—any Supreme Court Judge—or an Appellate Division Judge can set the bail pending appeal. I can make up a Notice of Appeal right here and now, and then I’d like you to set bail. Why should I make another trip, type up formal papers, waste another court’s time on a matter you can resolve in the next thirty seconds?”
“What about this Part 31?” the Judge asked the clerk.
“These applications are usually sent there, Judge,” said the clerk. “That’s the way we do it in this county.”
The Judge looked at Marc, shrugging. “That’s the procedure then. You’ll have to go to Part 31.”
“And make the application on paper,” said the D.A.
“And I guess you should make it on paper while you’re at it,” added the Judge.
“You know, Judge,” Marc said quietly. The other three men listened as they were still huddled at the bench. “An application like this may be just procedure to us. And a delay while the motion papers are drawn, or sent to this Part or another Part or processed, may just be a convenience, an attempt at keeping things neat and orderly. But the lives of defendants are being wasted in rotten jails while we split hairs. That’s why we have riots on our hands.”
The D.A. frowned and turned away, walking to his table.
“You must be making quite a fee on this one, Counselor,” said the clerk.
“Why do you say that?” asked Marc.
“Why else would you bother breaking your balls so much for a client except you’re getting a good fee?”
“A little jail won’t hurt any of them, Mister Conte,” said the Judge, smiling indulgently. “So, it’ll take a couple of days and then you get the bail set. Come on, let’s go. I have some other sentences.”
“Let me just say this in answer to the clerk’s question, Judge,” said Marc. “As long as there’s something I can do for my clients, I’ll do it, paid or not, because their lives are in my hands and I take that responsibility seriously. You, Mister Clerk, you call cases on the calendar. Judge, you dispose of cases, sentence people. The D.A. whether he wins or loses, h
e represents a book, a statute, a piece of paper. I’m the only one here who personally deals with human beings, and they deal with me personally, and cry on my shoulder, and get angry with me, and hope that I can help them. And by God, I’m ready to go right into the dragon’s mouth and pull out his tonsils by hand if I have to. Otherwise, I shouldn’t be representing people.”
“How can you make a living that way?” said the Judge.
Marc just looked at the Judge, then the clerk. “It’s a lot of honest-to-God work, Judge. I’ll have the papers in this case filed this afternoon,” he said. As Marc walked back to the counsel table, he saw Mrs. Maricyk sitting on the edge of her bench in the audience.
“Don’t worry about it, Counselor,” said Maricyk. “I know you’re fighting for me. Talk to the wife, will you.”
A court officer accompanied Maricyk back to the bull pen.
Mrs. Maricyk was shaking her head. She looked stunned as they walked to the elevator.
“Don’t get too upset,” said Marc. “With time off for good behavior, he’ll only have to do six months. He’s already served a month, so he’ll be out in five months.”
“Yeah, well I guess you can look at it that way,” said Mrs. Maricyk. “But five months is five months, no matter how you look at it.” Tears were rolling down her cheeks. Marc felt rotten that there was no way he could console her.
As they waited for the elevators, Liam O’Connor was walking through the corridor toward the courtrooms.
“Hey, Marc,” called O’Connor with an unusual warmth.
“Hello,” replied Marc.
“Can I talk to you for a minute?”
“Excuse me,” Marc said to Mrs. Maricyk. He walked a short distance away with O’Connor.
“I understand you’re up for a judgeship,” said O’Connor. He was smiling pleasantly. O’Connor knew enough to become friendly with a prospective judge, even if the prospect was Marc.
“I’ve just been to the first committee,” replied Marc. “I don’t know what’s going to happen with it. How do you know about it, anyway?”
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