Gideon v. Wainwright guarantees all persons accused of a crime the right to a criminal defense attorney. “Charley’s Angel,” first published in the National Association of Criminal Defense Lawyers magazine The Champion, recounts my own experience representing an indigent defendant many years ago. Most federal indictments are resolved by a plea agreement, and Charley’s case appeared to be heading that way. But in this case, the plea agreement was only the beginning of the story. The names of those involved have been changed. But this story of a man falsely accused of a serious federal crime is true.
Charley’s angel that saved him from a plea agreement
The client’s name was Charley. He was about my age and about my size, but with fewer pounds on his frame. His face was scarred. Some of his teeth were broken. He’d lived in Providence all his life, lived on the street, lived hard.
I met Charley in the cellblock of a busy district court a few minutes before his probation violation/bail hearing. The state of Rhode Island had charged Charley with assault with a dangerous weapon, possession of marijuana, and possession of a pistol without a license. Two policemen had caught him hiding in an alley. He’d been seen stuffing a large leather jacket under a car. Inside the jacket was a pistol. Inside Charley’s pants was a bag of marijuana. A witness named “Scott” was brought to the scene, and quickly identified Charley as the man who threatened him with a gun.
Charley’s criminal history took up two typed pages. Drugs. Assault. Petty theft. Stolen car possession.
“I’ve done a lot of bad things,” he said. “But I never had a gun.”
How many times had I heard an excuse like this from a client? Usually a client without money, or education, or hope. A client who required the assistance of an appointed lawyer. A client just like Charley.
Within a few weeks I got a call from the federal court. Charley had been indicted as a felon in possession of a firearm. The Assistant United States Attorney was making some noise about charging him as an armed career criminal. That would mean an enhanced sentence of at least 15 years. But the AUSA might not proceed with the enhancement if Charley wanted to plead.
I’m telling you I didn’t have a gun, Charley insisted. I took the jacket. I had marijuana. But I didn’t have a gun.
I looked at the government’s discovery. The gun was found in a jacket pocket.
I swear I didn’t know it was there, Charley said. And that kid “Scott,” he’d been arrested that morning for hitting a girl. That’s why we were fighting, because I didn’t like that he hit that girl.
What’s the girl’s name, I asked.
April, Charley said.
What’s her last name?
I don’t know.
Where does April live?
I don’t know.
What’s April’s number?
I don’t know.
Do you know anyone who can help me find her?
If I can think of someone, I’ll tell you.
But Charley never thought of anyone who knew April.
I went to the courthouse, to see if “Scott” had been arrested that day. There was no record of arrest.
I wanted to believe Charley. But I also didn’t want him to go to prison for 15 years. Especially when he said that even though he was innocent, he would plead guilty to avoid the higher penalty that accompanies an armed career criminal enhancement. The AUSA sent a plea agreement. Charley would get credit for acceptance of responsibility. He would probably serve seven years in federal custody. He read the plea agreement. He sighed. He signed. The agreement was filed with the court, and a plea hearing was scheduled.
And then Charley’s angel, April, walked into my office.
She had strawberry blond hair that probably came from a bottle. It was piled in a thick, high hive on top of her head.
I hear you’re Charley’s lawyer, she said.
April proceeded to confirm almost everything Charley had told me. Yes, she’d been beaten by a man that day. Yes, Charley was a friend. Not a boyfriend. Just a friend. Except for one thing. She’d never heard of “Scott.” I showed her the picture of “Scott” taken by the Providence police.
That’s not Scott. April said. That’s Ricky.
Court records showed that Ricky had been arrested, charged with assault on April, and released on the same day that Charley was arrested. When police questioned Ricky and asked him to identify Charley that night, he gave the name “Scott.” It was “Scott,” not Ricky, who testified before the federal grand jury that indicted Charley.
I called the AUSA. She refused to drop the gun charge. I told her there would be no plea. Two weeks before the trial, the AUSA decided she was too busy to try the case and handed it off to a colleague.
A Federal Criminal Trial
The trial was only three days long. The prosecutor called the police who arrested Charley and found the jacket. He called an ATF agent who test-fired the pistol found inside the jacket, and told the jury how the gun had to move in interstate commerce. He read the jury a stipulation that Charley was a convicted felon.
But the prosecutor never called “Scott,” a.k.a. Ricky.
April testified about the beating Ricky gave her. The police officer who arrested Ricky testified to his report. Then Charley took the stand. He admitted to the crimes he’d committed. He acknowledged how drugs and terrible choices had damaged his life. He told how he’d punched at Ricky and stolen his jacket to teach him a lesson for beating a woman.
On cross-examination, Charley smiled a ridiculous smile at the prosecutor. I prayed that the jury would see this for what it truly was: not arrogance, but fear. In all of his vast experience with the criminal justice system, Charley had never been to trial before, much less testified.
At final argument, the best piece of physical evidence was the jacket. It was extra large – far too big for Charley’s frame, but just about right for the man who told the police his name was “Scott,” but who April knew as Ricky.
In order to prove that Charley possessed a firearm, the trial judge instructed, you have to prove he knew the firearm was in the jacket. And proving knowledge, he noted, is very difficult to do (That’s the best jury instruction I’ve ever received on behalf of a criminal defendant).
The jury got the case on a Wednesday morning. In less than two hours they had a verdict.
We waited ten minutes in court for the judge to take the bench. Next door, in the jury room, we could hear voices.
Why are they laughing? Charley asked.
I didn’t answer. Any ballplayer will tell you it’s bad luck to talk about a no hitter.
The best thing about an acquittal in federal court is the expression on the faces of court employees. They’re just not used to it.
I wish I could tell you I walked out of the courthouse that day with Charley by my side. But he still had state charges. He resolved them with a plea the following week. Charley got a suspended sentence. He had no money. I walked him back to my office and let him use the phone to call his mother. Then I gave him $5 for the bus. I have not seen him since. But I won’t forget him anytime soon.