Some criminal cases are heartbreaking, not because of harm to a victim, but because of the circumstances of the criminal. As a criminal prosecutor and as a judge I have some discretion to “do the right thing.”
The WWII Vet Shoplifter
As a young criminal prosecutor in the Orange County District Attorney’s Office, I was assigned a case of an 80-year old WWII decorated veteran charged with shoplifting. He went into a J.C. Penney store, removed a dress suit from the rack, rolled it up, stuffed it down his pants, and walked out of the store without paying for it. The theft was obvious – a senior citizen with a man’s suit crammed in the front of his pants. It was not a sophisticated crime. Additionally, a security guard watched the whole thing.
When the security guard stopped the senior citizen, the man broke down in tears and pleaded, “I have never done anything like this before. I was going to bring the suit back. But I am poor and today is my only grandson’s wedding and I just wanted to look nice.”
I confirmed that the shoplifter had a totally clean criminal record. I also confirmed that he was in fact a WWII hero. I verified that he was poor. I confirmed the wedding. I was able to “doing the right thing,” and moved to dismiss his case “in the interests of justice.”
The Teenage Christmas Tree Thief
One of my first cases as a juvenile court prosecutor involved a fifteen-year-old teenager charged with stealing a Christmas tree.
It was very late on Christmas Eve when the young man walked into a Christmas tree lot and looked at the few remaining pitiful trees. He grabbed one and ran out without paying. Since he was dragging a Christmas tree with him, the cops easily spotted and caught him.
The young man could only speak Spanish and the police called in an interpreter. The teenager was polite, respectful, and cooperative. He immediately confessed to the crime. He said that his father had just been killed in a traffic car accident, leaving his mother and his five younger brothers and sisters without any money. Since he was the oldest son, he felt a responsibility to care for his younger siblings. He cried as he confessed, “I just wanted my little brothers and sisters to have a Christmas.”
After verifying the circumstances and discussing the case with my boss, I moved for dismissal.
The Death Camp Survivor Food Thief
I was assigned to prosecute a unique shoplifting case. An elderly woman went into a grocery store and started stuffing dozens of canned goods into her clothing. The bulges were obvious. She then left the store without paying.
Prosecuting this case seemed like a “slam dunk.” (I learned over the years that there is no such thing as a “slam dunk” criminal case.)
The shoplifter had an A-team criminal defense attorney. He was prominent in the Jewish community and often wore his yarmulke to court. We had battled in court many times and respected each other’s skills and integrity. Whenever he was on the other side of a case, I knew I had to work extra hard.
I first asked the lawyer how his seemingly-poor client could afford his fees. He said that he was defending her case pro bono (for free) and that any major expenses would be covered by the Simon Wiesenthal Holocaust Center. That got my attention.
He explained that his client was Jewish and had survived five years in one of the most infamous Nazi death camps. During that time, she was constantly on the verge of starvation. In order to survive, she scavenged scraps of food and hid them in her clothing.
Her attorney said that people in her circumstances develop an irrational fear of starvation, and they squirrel away food whenever they can. He shared a psychiatric report confirming that the woman suffered from this mental disorder. He taunted me by saying that the Simon Wiesenthal Institute had an army of psychiatrists who couldn’t wait to testify in my case.
I discussed the case at length with my supervisor. He concluded, “Even if her story is not true, by the time the jurors hear her death camp horror stories, they will want to find you guilty.” In other words, there was so much sympathy and mitigation that a jury would never convict her, and they would hate me. We agreed to dismiss her case.
Evicting a WWII Hero
I once presided over a unique unlawful detainer eviction trial. The renter was a seventy-five-year-old WWII hero. He was living in a federally subsidized apartment complex for the elderly and disabled. He had lived there about ten years.
Legally, it was a cut-and-dried decision. The other tenants were anxious to get their peaceful lives back. But the hero claimed he had no family and no where else to go. I had no choice but to order him evicted.
Unfortunately, this elderly gentleman started harassing other tenants. He would sit on his second story balcony and spray other tenants with bug spray as they walked by on the sidewalk below. He started shoving obscene notes under tenants’ doors. He started making obscene phone calls to other tenants. He was repeatedly warned that if he continued this conduct he would be evicted.
When the sheriff’s deputies went to his apartment to forcibly remove him, he pleaded, “But I’ve got nowhere to go.” He suddenly pulled out a gun, put it in his mouth, and shot himself.
I never would have thought that my “routine” decision would have resulted in a suicide. Sometimes, my heartbreaking cases have tragic endings.
As lawyers and judges we are often called upon to reconcile the demands of justice and mandates of mercy. We can only do this through humility and divine guidance.
Micah 6:8 reads, “What doth the Lord require of thee, but to do justly, and love mercy, and to walk humbly with thy God.”
Justice and Mercy