Ed. Note: Five years ago, Judge Richard Kopf wrote about a criminal defense lawyer in his courtroom, David Tarrell. At the time, David saw Judge Kopf’s post, but still being on the CJA panel and Judge Kopf having yet to retire, he wasn’t sure what the appropriate response would be. Years have since passed, Judge Kopf has retired and David finally thought it time to respond.

Dear Judge Kopf,

It’s been five years since you wrote a post on this blog about a time when I appeared before you and in that post you vehemently (but also erroneously, in my opinion) claimed that any “empathy that [you] once had had been burned out of [you].” That wasn’t the only thing you were clearly incorrect about, in fact, your honor.

While it was true that we had met before, you were also wrong when you observed that “this case was the first time [David] had ever appeared before me. And, while I know you’re not going to like this, I feel I need to correct the record.

You see, the first time I appeared before you, which you apparently didn’t think was significant enough to commit to memory, was the only time I’d ever appeared before any judge, in federal or state court, when a bystander in the gallery, gasped loudly (in a good way from my perspective, as a criminal defense attorney, anyway) when the sentence was pronounced.

In that case, I made what at the time, in the shadow of the Federal Sentencing Guidelines, felt like a radical request, namely that I believed you should disregard the recommended range and instead sentence the middle aged woman standing before you to probation, despite the large amount of meth attributed to her.

My reasoning was that since she’d been arrested, she’d completed inpatient treatment for meth, had then lived in a halfway house for months and was already home with her family, doing well, passing drug tests, with almost a year of sobriety under her belt. I went on to say that while the large amount of meth was technically attributed to her under the Guidelines, that this wasn’t just, for several reasons.

First, she’d only served as an interpreter to what, as she later found out, was a controlled buy, and only stood to gain a little meth for her services, an addict used by the actual drug dealers, paid merely with a “little bump off a ‘teener’ for her part, and who’d probably end up buying some of this meth from them later, to feed her addiction.

Second, as soon as she saw the large amount of meth placed on the table, she got scared, and even walked out of the house, as even the agents, who picked her up a block away or so, before they raided the house, acknowledged.

In short, was it fair to say she was responsible for an amount that, once she saw it, scared her away, even before she got “paid,” or was allowed to get high, was my argument.

And, frankly, I didn’t have a lot of confidence it would resonate, because even though I believed that the probation term I sought seemed reasonable, it also represented a large downward departure. I was kind of “shouting into the wind,” a likely naive, relatively inexperienced lawyer, in federal court at least, trying to point out that the emperors behind the guidelines were clotheless, at least under these facts, without much faith the man in black before me wasn’t subtly rolling his eyes at my naïve request to forego the guidelines’ default remedy, a long term in prison.

But then, shockingly to both my client and me (and especially the gasping woman in the gallery) you spoke up and said you agreed with me. You, too, thought probation sounded like a reasonable sentence. My client and I both fake nodded our heads, trying to remain poker faced, as if this was somehow expected, as if we didn’t secretly wonder if we’d been asking for too much, were “way out over our skis,” and about to be brought back to hard reality and, her at least, to the cold steel cuffs of the Marshals in the courtroom.

But, like I said, a woman behind us, gasped out loud, as if in shock, in what would become one of my favorite moments as a criminal defense lawyer. Her involuntary inhale, a joyful, universally recognized human emotion, echoed in the formerly solemn courtroom, sounding, at least to me, like justice finally arriving home but still easily recognized, after a long absence.

And then, after you exited the courtroom, and we could truly exhale, the woman, who’d been sitting beside me almost collapsed, joined her family in the gallery and they almost collapsed together, as if they’d been apart for years instead of minutes, as if they expected to meet again in perhaps decades rather than again so very soon, riding home together again, relaxed instead of unsure, terrified and speechless, this time.

So, in conclusion (and I’m really sorry to break this to you, and know you’ll vehemently disagree) since you didn’t even remember that moment, that neither my client nor I will ever forget, I wonder if moments like that are not registered as “reasonable,” or even “transformative,” but instead filed away under the much more mundane category of “just another Tuesday,” perhaps?

You don’t have to listen to me anymore, as that’s not a part of your job any longer. But I suggest remaining open to that possibility, realizing that while the bitter moments often come to mind as we look back over time, the sweet ones are more numerous than we imagine, more meaningful than we dare to consider, especially when we’re blessed/cursed with minds trained to focus on what we could have done better than on what we simply accomplished and then likely later overlooked in our quest to get closer to perfection?

——

But, anyway, back to the lecture at hand… your blog post from five years ago about a different woman, also a meth addict, who like my other client, got to walk out of your courtroom, into a shelter rather than back into custody.

You accurately described her as “competent… but an emotional mess.” After I took her, first to the People’s City Mission, and then to Matt Talbot’s Kitchen (not for food but for shoes) we crossed paths a few more times over the years.

She eventually took up residence on a median not far from the Sam’s Club I go to quite a bit. Over the years I stopped and talked to her a few times, always being inspired by her fighting spirit, the way she’s never given up, never lost hope even when homeless or stricken.

Once she told me she’d saved “thousands” so she could rent an apartment. But, shortly thereafter, when I stopped to chat again, she told me, somehow without sounding like she considered herself a victim very much, that money’d been stolen (in what’s probably a common occurrence for homeless people, who often lack IDs, and therefore bank accounts, and have to hide their savings) someone found hers and she was back to square zero.

Another time a few years ago, as shown in the attached photo, she told me her cancer was stage 4, somehow still using that hopeful tone, as if things might still turn around. And, shockingly, they soon did as when I stopped again shortly thereafter, she told me she was feeling better, getting even better reports about the cancer!

This hopefulness didn’t exactly square with her suntanned, aging face, her dirty but familiar red bandana, and her likely soul but also prized possession, a Walmart bike leaning on a fence nearby. But the hope in her eyes, as if contagious, also left me feeling that way, my own life, that I secretly complained about, wished to improve, now suddenly appearing as if I’d been wandering around in the dark and then someone, perhaps her, switched on a light that revealed I’d been living in a palace, all this time, without knowing so, to borrow an image from Pema Chodron.

And then, for a year or so, I didn’t see her out there anymore. I wondered if maybe her fluctuating cancer, the cold, no sunscreen, or a predator, had pulled her down from behind by both shoulders, as KSC’s wonderful Don Welch once described his depression sometimes getting to him.

But, just like him, and those songbirds purpling space he chronicled, about a month ago I spotted her again on that old, familiar median, begging still but not yet beaten.

This time, when I parked my car, walked over to her and her cardboard sign, I asked if she remembered me, given that it had been awhile. When she said “of course” she did, I asked if it was ok if I snapped another photo of her, to “send to the judge,” and she said she didn’t mind at all.

And then she asked me, if I were to run into you, would I mind letting you know “there isn’t a day that goes by when I don’t think about that day, how he let me out of that jail.”

In other words, your Honor, I hate to break it to you, but your previously announced conclusion that “any empathy you once had has been burned out of you” isn’t supported by the evidence. As such, the opinion of the District Court to the contrary should be reversed, the cause remanded.

And, one more thing. I sincerely appreciate your compliment about the “milk of human kindness,” and should perhaps just run with it, like the way I’m encouraging you to reconsider your belief about a lack of empathy on your part.

But I remember things a little differently than you do about that day. My memory is that you came up with the idea that it was unjust and unfair to incarcerate a really sad, poor woman and that the only barrier to her getting to a better, more appropriate place was that the Marshals don’t give rides, and cutting her loose in downtown Lincoln, shoeless, seemed even more unfair.

At that point, going back to work at the “billboard firm” I worked at then, where I was always missing my billable hours target (and where I eventually learned that I felt more at home in the Public Defender’s office, where I am now) sounded a lot less exciting than driving my now joyful client to the Mission and to get a pair of shoes. So it wasn’t a burden at all and was rather, to borrow another of Don Welch’s phrases, “a vertical moment in an otherwise linear life.”

In summary, the Milk of Human Kindness may have been flowing that day, but, much as you probably hate to admit it, it originated from the bench not the bar. I was simply a guy lucky enough, just like Lisa, to be along for the ride.

And here she is, still fighting the good fight, still refusing to go gentle into that good night, somehow remaining grateful for the gifts she’s been granted, the dollars and the memories, that take the edge off the pain of her difficult plight.

David Tarrell