Savvy defense attorney Kevin Donahue, who’s practiced almost thirty years in the Democratic stronghold of Los Angeles County, is still puzzled from time to time by the implacable attitudes of prosecutors he faces, and he’s not afraid to say so. I asked him to name an instance that particularly bothered him, and he immediately chose the case of a young man who was unquestionably guilty as charged:
I had this client who was twenty-five years old. He had two years of college. He was a good kid, and he had a clean record. But one night he got drunk and somewhere he got a gun, and he was out there and he was with these people and he was just wobbling drunk, and they were having a good time. They were all friendly. He had his arms around their necks, and at some point he said, “Give me your wallet.” And he took their jewelry too.
His offense, Donahue readily concedes, was inexcusable and deserved conviction and punishment. But in California, the minimum for robbery at gunpoint is twelve years. With good behavior, a convict can get 15 percent lopped off the sentence, meaning his client would have to do a minimum of ten years, two months, a far lengthier term, Donahue believed, than was merited. His client needed a lesson, not obliteration. But he was up against another one of those statutes that can often be counterproductive, taking the clay of human beings who still have potential and molding them into broken or bitter ex-convicts whose survival skills aren’t taught in any scouting manuals. Donahue, wishing he could do more for the young man, knew the facts of the robbery were clear and made peace with the situation. But when he spoke to the prosecutor, he came away astonished. “She was set on giving him twenty-six years,” he recalled. He paused. “Twenty-six years. He’d never been in trouble before, and he didn’t hurt anybody. He was just a kid. And twelve years wasn’t enough?”
The assistant district attorney was adamant, but Donahue, who knows all the essential names and numbers in the Los Angeles criminal courts, managed to get his client before a judge he thought might show leniency in such a case, someone who would think twice before throwing a life away. Meanwhile the assistant district attorney continued to amaze him: “She told me, ‘If he doesn’t get at least 22 years I’ll never take a case before this judge again.’”
Finally, Donahue negotiated a deal for sixteen years with possibility for parole only after the defendant served 13 years, 6 months. Given the facts of the case, he was convinced that going to trial would have dug a deeper pit for his guilty client. Only after he banged the gavel on the sixteen years did the judge notice that no one had mentioned the other charges. There were several other charges against Donahue’s client relating to the one incident, which is typical.
“What you do in these cases,” Donahue explained, “is you plead guilty to one charge and drop the others. That’s the way it works. But the assistant [district attorney] told the judge, “We’re going to trial on the other charges.” She was trying to pile on more years. The judge looked at her and said, “I want you to go back to your supervisor and explain what’s going on here, that you made an agreement and this is what you’re doing about it.” Finally they dropped the other charges, and I was supposed to feel like I got a victory because my client got only sixteen years.
This column was excerpted from Sick Justice: Inside the American Gulag, by Ivan G. Goldman (Potomac, University of Nebraska Press, June 2013).
Causes Ivan Goldman Supports
American Heart Association
National Alliance on Mental Illness
Beit T'Shuvah Recovery Program