As the father of a young family, in the early years of my practice, I did not have a lot of time to devote to pro bono work. A sole practitioner with relatively short roots in the community (five years, when I began my practice, nearly four of which were spent in night law school) has to keep the nose to the grindstone and shoulder to the wheel.
I did make myself available to the local ACLU as a cooperating attorney in criminal cases, which is to say they could call me when a complaint was received that someone’s rights were being denied in the context of a criminal prosecution, and I would give them my opinion as to whether a legitimate complaint was being brought. Occasionally, I would render some assistance to the complaining party, when appropriate.
One Friday afternoon, I received a call from the person who manned the ACLU phone, advising that there was a man in the office who was scheduled to go to trial in a nearby town, Kerrville, on Monday.
He had hired a Houston lawyer, but the lawyer had never yet appeared in court, and the judge had told the man he was going to trial on a charge of attempted murder on the following Monday, whether his lawyer showed up or not.
In view of the apparent urgency of the situation, I had the man sent over to my office for an interview. When he arrived, I had him flesh the story out a bit. I learned that someone had recommended the Houston lawyer when the trouble first arose, and he had paid the lawyer’s retainer in full. (Why he chose a Houston lawyer, or why the Houston lawyer accepted the case, was not immediately apparent, since the defendant was not a wealthy man and Houston is 250 miles from Kerrville.)
Thereafter, he learned that the lawyer had no office other than his apartment and was virtually never home. Worse, when he had reached the lawyer, late at night, the lawyer was inevitably intoxicated.
Despite being advised of the prior settings of the case, the lawyer had never appeared. The judge had made it very clear the last time the case was set that he expected the defendant in court, with a lawyer, the next time the case was set because he intended to try the case.
I did not, at that time, know the judge in the case, Judge Bob Barton, nor did I know anything of his reputation, save two things: He was the former district attorney in the area, and was the author of a peace officer’s manual that was very widely used by Texas lawmen as a quick field reference on the criminal laws of the state.
It was thus clear that Judge Barton was a solid law-and-order man. What I did not then know was that he was (and is) an extremely fair-minded scholar of the law who would never have abused the defendant or his rights; he had simply let the defendant know that it was time to get on with the case, with the lawyer he had hired or someone else.
I promised the man I would be in Judge Barton’s district courtroom the following Monday, in case his lawyer again failed to appear. He thanked me profusely and left. I did not even get into the facts of the case with him.
I drove to Kerrville, a distance of about 60 miles, on Monday morning, arriving several minutes before the docket was called at 9:00 a.m. I located the defendant and learned from him that the Houston lawyer had not appeared.
When the case was called, I stood and announced to the Court that I was not the attorney of record in the case, that I did not know the attorney of record, but knew that he had never appeared in court. I was there, I told the judge, more or less as a friend of the court and to give the defendant the comfort of having someone stand beside him.
Now, what I did not realize was that the lawyer had not only never appeared in the court; he had never filed any documents with the court indicating that he represented the defendant. Thus, though the defendant had a just grievance against the man, and the right to sue for the return of his money, the court really could not require him to handle the case.
Had I known Judge Barton then as I do now, I would have realized that he would have gotten the lawyer in court, even if he had to send the sheriff to Houston for him, if the man had ever appeared as attorney of record in the case.
Judge Barton was glad to see me; at least, he said he was, and I believed him when he said it—I still do. Since I was the only lawyer who had appeared before the court in behalf of the defendant, he was, he said, appointing me to represent the defendant.
He would, unfortunately, be unable to compensate me for doing so, since the defendant had made no affidavit of indigency. Nonetheless, he was sure that as an officer of the court, I would be pleased to be of assistance to the defendant and court alike by performing that service.
I thanked the judge for his faith in my prospective performance, but wondered whether that would be quite appropriate since, as he pointed out, the man had made no affidavit of indigency and I could not charge him a fee, since he had been sent to me by the ACLU.
Before the judge could speak, the defendant volunteered that although he had originally had the money, he did not have it anymore; the Houston lawyer got it all. He could come up with some money, given time, but had no funds with which to hire a lawyer at that time.
The judge had the solution, satisfactory from his perspective, ideal from the defendant’s perspective, and clearly without option from mine (having shown up in court, I was very clearly going to be the lawyer, one way or another).
At the conclusion of the case, he would decide what he would have paid a court-appointed lawyer to handle the case, and the client could pay me that sum.
I was beginning to admire Judge Barton’s style, though I was not really thrilled about his ruling. Moreover, I had gleaned just enough of the facts of the case in my discussions with the defendant to realize the case promised to be unique.
I acquiesced, raising no protest. Judge Barton, learning that I had only learned of the existence of the case late the previous Friday, graciously agreed to reset the case to give me time to prepare.
The citizen accused (they quit being “defendant” when I got hired or appointed to represent them) and I went across the street to a coffee shop to begin to get acquainted and so he could flesh out the facts of the case for me.
He was, it seemed, the father of several children, the youngest of whom was a 16-year-old girl. He and his wife were people in their late 50s, I judged, and found themselves more than a little challenged by the special problems this young girl presented.
She had always been a good girl, helping her mama around the house, doing fine at school, and working part time as a waitress at the little cafe up the street from her father’s garage, which was right next door to the house.
Then she had met that young man, and nothing had been the same since.
They had heard that the man was an ex-convict and an alcoholic (I never did learn for sure whether either of those things were true), and they had forbade the daughter seeing him.
They learned that he was coming around to see her at the cafe, and they made her quit her job. Almost predictably, soon thereafter the girl ran away. She returned after a few days, saying that they had gone to Mexico and gotten married.
The parents, of course, told her that no such purported marriage was legal, she being 16 and all, and that she was not only staying with them, but she was not to leave the house.
A few days later, the girl again disappeared. After several days, they were able to determine that the young man (who was about 10 years older than the girl) had also left town.
They did not know what to do or where to turn. They had no idea where the two had gone. Finally, they reported the daughter to juvenile authorities as a runaway and filed what amounted to statutory rape charges against the young man.
After a time, the police got a lead that the young couple was in Missouri.
With the assistance of Missouri authorities, both the girl and the man had been picked up. She was being held in a juvenile detention facility as a runaway, and he was in jail on a fugitive warrant from Texas, charging him with statutory rape.
Mama and Papa were advised and they drove to Missouri. There, they visited with both the daughter and the young man. They had realized, they told the young people, that their previous approach of forbidding the girl to see the young man was not going to work, and they had a new approach.
If the girl would agree to come home, they said, and if the young man would agree to go through a proper courtship (I never asked to have that defined), and if they still wanted to marry when the girl turned 17, some six months down the road, they could marry, with her parents’ blessing.
The young people readily agreed, since part of the consideration was the withdrawal of the criminal complaint against the young man.
Mama and Papa took daughter home, and criminal charges against the young man were dismissed.
It was nearly two weeks before the daughter took off again.
This time, she and the young man stayed in Kerr County on a ranch.
When Papa learned where they were and went to the ranch, he was greeted by another young man, whom he did not know, who brandished a weapon and advised him he was trespassing. He was not welcome, the young man said, and would be shot if he did not leave or trespassed again.
Papa went home and told Mama what had happened. They were both terribly upset and did not know what to do. After a day or two, though, they remembered that the girl had tearfully told them, during an earlier confrontation, that the young man was not what they thought, that in fact he was very religious and could be found at the Church of Christ any time the doors were open.
They determined to go to the church just before Wednesday-night prayer meeting and attempt to talk to their daughter there.
When Wednesday night came, they got in the old wrecker and drove over to the church.
Not many people had arrived when they did, and the ones they had come to see were not among them.
They pulled into a parking place and waited. Quite a number of cars arrived while they were there, and people were wondering who that pair sitting in the wrecker in the parking lot were, and why they did not get out and come on in.
After some little while, the young people drove up. They parked just up the row, toward the front of the church, and began to exit the car.
When they did, Mama and Papa exited the wrecker. At that point, the daughter saw them, yelled, and began to run toward the front of the church.
Mama kept on going towards the front of the church, but Papa, remembering his experience at the ranch and having noted the looks members of the congregation had been giving them, decided he might need some help. He reached behind the seat of the wrecker and took one of two deer rifles down from the gun rack in the rear window.
As he got the gun and started around to the front, word that there was a man in the parking lot with a gun spread quickly.
Naturally enough, there was a great deal of alarm. As Papa was about to get to the corner of the building, one of the men in the congregation “blind-sided” him, knocking him to the ground and taking away the rifle.
The man scurried to the front, leaving Papa somewhat dazedly looking for his glasses in the grass. About the time Papa found the glasses, he heard a shot go off. He immediately thought of his wife, and was scared to death that somebody had shot Mama.
He went back to the wrecker, opened the door, and grabbed his lever action 30/30 from the gun rack.
Jacking a round into the chamber, he hurried around to the front of the church. When he arrived there, Mama, daughter, and young man had all run inside the church. As he did not see Mama, his fear for her safety continued unabated. He made for the front door. As he moved toward the front door, the preacher and a group of the elders loomed before him, blocking his way. He shouted at them to get out of his way, but they vowed he would not pass.
He was standing there with the deer rifle poked into the preacher’s stomach when the sheriff’s deputy drove up. Mama came out about then, he realized she was okay, and he laid down the rifle.
He was arrested for assault on the preacher and taken to jail. He made bond early the next morning.
Talking with Mama after his release, he learned for the first time that the gunshot he had heard had been the sound of a round which was accidentally discharged into the roof of the church porch when someone was attempting to unload it.
For reasons I have never understood, the indictment returned by the grand jury accused him of the attempted murder of the man who took the first gun away from him. Since he had never even seen that man before the man took the gun away from him, that seemed to be a bit of a reach. In fact, I saw no way in which the district attorney could prove the case.
I learned that the case had become something of a political problem to the DA. Because of the delays occasioned by the Houston lawyer not coming to court, the case had taken a while to come to trial. Some of the church leaders had been by the DA’s office a couple of times to find out what was going on with the case and to assure him of their continued concern. Each visit had concluded with a prayer that justice would be done in the case. The DA was going to have a hard time “dealing” this one out.
That meant I had a problem too. The case was going to have to go to trial, and the event had spread quickly throughout the community, poisoning the pool of potential jurors. Though I felt the DA would have a hard time legally, I had real reservations about whether a fair jury could be selected.
It was at this point I began to really ask around about Judge Barton and learned that his reputation for toughness was matched by his reputation for fairness.
So it was that I recommended to my client (for one of very few times in my practice) that he waive a jury and try the case to the court.
We did, and the legal problems in the case were as apparent to Judge Barton as they had been to me. He acquitted my client of attempted murder and convicted him of reckless conduct, a misdemeanor.
Since we have a statute making it reckless conduct to knowingly point a loaded weapon in the direction of another, that seemed reasonable enough to me, though I had argued that it was not what we lawyers call a “lesser included offense” of attempted murder—lesser yes, included no.
I still think it was a reasonable call on Judge Barton’s part. He assessed a $500 fine and 10 days in jail. He credited Papa with the time already spent in jail and said he could serve the rest on weekends.
Judge Barton said he would have paid me $500 if I had been court-appointed in the case. I thanked him for his courtesies, shook hands with Papa, and headed back to San Antonio. I never talked to Papa again and never saw the $500.
Several years later, I received a call from one of Papa’s sons. Papa had died, and it seems he had left the lever-action 30/30 to me. It had special sentimental value to the family, he said, and he wondered if I might be willing to just let them keep it. I thought about telling him I would be happy to let them have it if they would just pay the $500 fee Judge Barton set, but did not.
“Sure,” I said. “Keep it. It means something to the family.”