2003-02-13 - 8:50 p.m.
THE MEANS
Anyone who works as a public defender is bound to hear a few disturbing facts�from clients, from law enforcement, from other attorneys, from witnesses, and, occasionally from witnesses. Usually, the disturbing facts are about the client. Once in a while, however, the disturbing facts are about others. The facts are worst when they reflect some systematic abuse. I heard those sorts of facts today.
When evil has been made bureaucratic, it tends to chillingly cheerful. The person who conveyed the facts this time apparently was not only comfortable with them but proud of them. She was making things efficient. She was processing the paperwork and getting things done. She said she was following the orders of her supervisors. She also apparently was regularly lying to the courts.
Her job was to process paperwork concerning restitution. In most cases in Wisconsin, restitution is to be set by the judge. Sometimes, however, as a practical matter, it is set by the Department of Probation and Parole. When that happens, the procedure calls for notifying the defendant. If he contests the amount or even the fact of restitution, the matter goes to the district attorney to contact the court and hold a hearing. If he doesn�t, the court simply enters the amount on an order and an attempt is made to collect it.
But this clerk�s superiors apparently believed notification took too much time and was too cumbersome. Why have hearings when the district attorney�s office is sometimes bad about notifying the Department of the date and when the Department sometimes loses them. Wouldn�t it be more efficient simply not to tell defendants of the setting of restitution and just skip to charging them for it?
Sure, there�s a problem but it can be solved. The form for setting the restitution asks whether the defendant has been notified and whether the defendant has waived a hearing. If the clerk doesn�t check the box, a hearing will occur. If the clerk does, there will not be that inconvenient hearing. And so, the clerk efficiently checks the box even though no one has talked to the defendant. The clerk fraudulently tells the court that the defendant has knowingly waived a hearing. What�s a little fraud in a good cause?
The problem came to light in a case one of my colleagues is handling. A year ago, in a case in which the court and not the Department initially set restitution, she challenged the restitution on appeal. The appellate court agreed that the statutes did not authorize the restitution that was set. The trial court issued an amended judgment of conviction setting the restitution at $0 and the matter seemed closed.
But it reared it�s ugly head again this week. The client complained that he was being charged restitution again. She checked into it and discovered a new restitution order signed by the judge without a hearing. She further discovered the judge did it without notification to her because her client supposedly waived a hearing. She called the client�s agent to complain and discovered that the agent knew nothing about the restitution or the waiver of a hearing. She had never spoken to him because he was still in prison and not on her over-active caseload. She simply referred my colleague to the clerk because the clerk handles restitution. And the clerk eagerly explained the system.
By now, of course, the Department and the clerk have figured out that there is a problem. We know they grasp the existence of a problem because they suddenly have become uncooperative and balked at sharing the caselog they showed off that indicated a lack of contact with the client.
Days like today bring out the cynic in me. I like to try to believe that generally people tell the truth. I really like to believe that the �good guys� tell the truth. But too many people are far to ready to lie in the service of a �good cause� and the lie in service of a �good cause� bothers me the most. I am ready to believe that people slip up and lie from guilt, embarrassment, fright, or greed. When they lie for those reasons, I can understand. They�ve slipped. They�ve fallen away. They know they�ve done wrong and they usually know they�re wrong to lie. There�s some hope for them.
But this clerk and her superiors? They�ve forgotten that the means too often become the ends�and I�m having way too much trouble distinguishing them from many of my clients.
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Copyright 2006 by Ellen |
