Turning Off The Tap

by jkatejohnston

18 September 2013

Dear Max,


At work, every now and then, not often, but enough, I get to stand on my few-square-inches of justice and say—Mine. That’s all I’m going to say about that. I’m still easy to fire. But I do love it when it happens.

It makes me think back to doing criminal cases, how decent-minded cops and DAs probably do more justice than anyone. They decide who’s in the system. They control the tap. Judges and juries turn off the tap sometimes, but not usually. And defense attorneys (just to wring every drop out of this water metaphor) are plumbers covered in shit with their butt cracks showing. They’re the ones who have to go under the house.

I’m going to try to write something long and reporter-ish about a case I worked on when I was an intern at the pubic defender’s office eleven years ago. The problem with lawyers and writing is that everything that goes through your head about a case is privileged attorney work product, and you have to keep it secret. It falls under the duty to “maintain inviolate the confidence, and at every peril to herself to preserve the secrets, of her client.” So you keep your mouth shut, especially in writing where you’re likely to get caught. And I guess you could ask the client to waive the privilege so you can blab, but not really. It’s never going to be good for them for you to blab, so how can you ask for it? You have a duty of loyalty too.

But this is an old case. He’s probably off parole. He can’t be charged with anything else on these facts. The statute of limitations for suing him has probably passed. So why not try to find him and get permission?

I can say this much without permission because it’s in the police reports: He was at a gas station. He flashed a gang sign at some members of a rival gang. They flashed gang signs back. He got back in his car and gunned it out of the gas station. They followed, shooting at him. He blew a stop sign and hit a car, bailed out and jumped on a boat that was going by being towed by a truck. He got away. Later that night he saw on the news that in the car that he’d hit there was a four year old boy, Rocky Duongmala, who died in the accident. He turned himself in.

He was charged with murder of the boy. The guys who shot at him were charged with murder of the boy and attempted murder of him. So he was a victim and a defendant in the same case.

I wrote a long motion to dismiss that pretty much said everyone agrees that once the other guys started shooting at him he had a right to use deadly force in self-defense. He could have shot them them dead and no crime. I think (have to check this) that even if he accidentally shot an innocent bystander the worst he could have been charged with was manslaughter. Instead he decided to run away—a less dangerous option that surely he also had a right to try. And he even had a right to run a stop sign—it was kind of an emergency.

The judge denied the motion. (They don’t like turning off the tap.) I think he ended up pleading to a manslaughter.