Deciding who to prosecute by asking “who won?” is not necessarily the best way to assign criminal responsibility, but it was the preferred method when I was an assistant public defender. And it made for a certain amount of rough-and-ready justice. The loser received his punishment in the emergency room, and the winner got his punishment in the courtroom. I would go to the local jail early on Monday morning and meet my new clients from the weekend festivities, and they would all sing the same song—“It was self defense.” When I asked what the victim did to place my client in fear for his life, I repeatedly got the same answer—“He ran his hand in his pocket.” Apparently, any weekend patron of a saloon who stuck his hand in his pocket was up to no good. Usually, when the police arrived, the victim’s pockets were found to be empty of anything which might be considered a weapon. I resolved that if I ever decided to take up bar hopping, I would purchase a pair of pants which had no pockets. Murder defendants frequently told another tale—the victim actually pulled a gun or knife and attempted to use it. When the police arrived, they rarely found a gun or knife on the floor beside the victim, but the defendant always had a ready explanation—“One of his friends toted it off before the police got there.”
Because I was a loyal defense attorney, I always took my client’s word for it, but I had my doubts. I was awakened to the very real possibility that my clients were telling me the truth by a man I’ll call Benjamin Franklin Hall. I arrived at the jail early one Monday morning and found Hall’s name on the jail roster with the notation Murder I by it. I called for Hall and took my seat in the interview room to await his arrival. It wasn’t long before the jailer brought in a big, muscular man with a smile so big it almost split his face.
After I had gotten the preliminary questions out of the way I asked Hall to tell me what happened. Hall told me that Gene Shirk and he had been enemies for a long time and that Shirk had often threatened to kill Hall. Hall said he was at a dance the previous Friday night when he ran into Shirk. Shirk immediately began trying to pick a fight. Hall said he didn’t want to fight, so he left the dance and went to get into his car. “I knew he’d come after me,” Hall said, “and I knew he’d come with a gun. So I got ready for him. I walked around to the driver’s side of my car and opened the door. I had a sawed-off shotgun stuck down beside the driver’s seat, so I just stood at the door waiting. It wasn’t a minute before Shirk came running out of the dance and charged at me. He ran his hand in his pocket, and I picked up the sawed-off.” Here we go again, I thought. Another tale about a murder victim who “ran his hand in his pocket” to draw a disappearing weapon. Hall continued his story: “When he pulled his pistolI laid the shotgun across the roof of my car and shot. The load of buckshot hit him in the chest and he went down. As fast as I could I reloaded my shotgun and walked over to Shirk’s body where a crowd was gathering. I told them ‘The first person who touches that pistol in Shirk’s hand is gonna join him on the ground. Now call the police. I stood over the body and guarded the gun until the police got there. As soon as they pulled up I dropped my shotgun and put up my hands. I made sure that they picked up the gun. When can you get me out on bond?”
“You’re not going to get out on bond,” I told him, “Nobody charged with Murder I gets out on bond.”
“Why not?” he wanted to know.
“Because you’re facing the death penalty. Anybody facing the death penalty would be a fool if he didn’t leave town and never come back. If I was charged with Murder I and they let me out of jail, that’s what I’d do.”
“That ain’t what I’d do. I’m innocent. It was self-defense. Now are you gonna get me out of jail or not?” I agreed to ask for a preliminary hearing.
We held the preliminary hearing in the judge’s chambers, and the prosecutor put on a half dozen or more witnesses. I was amazed to hear them all say that the killing happened exactly as Hall said it had. After hearing argument of counsel, the judge made his ruling. “Probable cause is a low burden of proof,” he said, “so I am not going to dismiss the charge. I’ll find that there is just barely enough probable cause to hold the defendant to answer for the charge.” The judge stopped speaking for a moment, and I took a breath getting ready to ask him to set bond. Before I could say anything, the judge said “Because the charge is so weak, however, I am going to release the defendant on his own recognizance.” I almost fell out of my chair.
As we got up to walk out of the judge’s chambers, I put my hand on my client’s shoulder. The next thing I knew I was being bear hugged by Hall, who was wearing an even bigger smile than he had the day I met him at the jail. “Ben, do you remember what I said about running if you got out on bond.” He remembered. “Please don’t do it.” Hall allowed as how he had no intention to run. He was an innocent man.
It was about two days later that I got a copy of the State Attorney’s “No Information,” a document stating that no murder charges would be filed against Hall. That was the good news. I also got a copy of an information charging Hall with possession of an illegal short barreled shotgun. Hall’s smile wasn’t quite as big when the judge sentenced him to prison for the illegal firearm, but he still had a good attitude. He was one of the few clients I ever had who actually shook my hand and thanked me for what I had done for him.
After that I was always a little more receptive to my clients when they told me “he ran his hand in his pocket” or “one of his friends toted it off before the police got there.” When I became a prosecutor I had the opportunity to prosecute a few people who “toted the gun off before the police got there.” The charge? Tampering with evidence.
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