Someday. Maybe. If I’m Really Good

I’ve made some punishment arguments to juries that I’m very proud of—arguments that gave me shivers, that got my clients exactly what they wanted. But I don’t believe I’ve ever read—much less made—a punishment argument anywhere near as powerful as this argument to a judge in an intoxicated-manslaughter a second-degree murder case by California criminal-defense lawyer Jacqueline Goodman (via Simple Justice):

Everyone is pretending. Pretending that Andrew isn’t a good person, not an ordinary young man. Pretending that three sets of parents who held their babies in their arms and dreamed about their futures are any different from parents who, at that same time 23 years ago, on those very same days, held their first baby boy, Andrew, bounced him on their knee, and dreamed of his future, full of love and promise.
Pretending those innocent parents are not victims themselves. Pretending their pain is less relevant here.

Pretending that the victims were not themselves human– beautiful and yes, flawed. Pretending that Courtney Stewart’s mistakes did not exist, and that Andrew Gallo’s mistakes were intent to kill. We’re pretending that Andrew is on par with those depraved killers who look into the eyes of their victims and determine wilfully to take their lives. We’re pretending that 51 years to life will have any impact on whether a different young man or woman drinks, and then foolishly gets behind the wheel, believing, as they do, in their omnipotence, their immortality. We’re pretending that here, today, that we are somehow not taking another life with cold intention, in response to the loss of lives in a tragic accident.

Well I will not pretend.

Andrew Gallo is a good and gentle soul who never set out to harm another person, and who does not deserve to lose his life.
He comes from a good family– a military family, his own brother a marine. A family who, in deference to the pain of the parents of the victims, and without thought of their own sorrow, every day gave up the front seats in their son’s own trial to the parents of the decedents here. They quietly sat in the back, entered and exited last, even as their son’s taking was on display in slow motion.
And it is absurd to think that we can summarize in a few sentences the infinite value of any of these lives or the depths of sorrow at these losses. But the only way we might spare a life or several lives from a similar fate is to allow Andrew the opportunity to share the lessons he’s learned at such great a cost.

That would be a far greater and more fitting legacy to Henry Pearson, Courtney Stewart, Nick Adenhart, and Jonathan Wilhite. That in their names was dealt mercy and temperance and understanding instead of vengeance and blame. That in their names, others were spared their own lives. This would be the most fitting tribute to these extraordinary people. They would stand for forgiveness over blame.
My own father is dying. He saw me in court one time, and that was here, in closing arguments. My father is a recovering alcoholic. He had about 30 years of life-affirming sobriety. But it took him about 40 years to reach it. Fate denied Andrew as much of a chance.
Today Andrew and I know that we come into this battle to lose. The victory, sometimes, is in showing up. The victory is speaking truth to power. It is in speaking love to hate.

At this moment, my father is dying. Because I am in this hearing today, I may not be by his side when he passes out of this life and into the next. But know this: That I am profoundly privileged to stand next to Andrew Gallo. And in my father’s name, I proudly stand on the side of honesty.  Of hope and redemption over blame.

(Did it work to reduce Andrew’s punishment? Of course it didn’t: as a society, we’re all about honoring the dead with destruction. But, like Goodman says, sometimes the victory is speaking truth to power, love to hate.)

14 Comments

  1. Hey Mark, thanks for picking this up. I’m the one who sent it to Scott hoping as many people as possible would read it.

    Incidentally, this was not a manslaughter case. That might actually make some sense. Gallo was convicted of second degree murder under an implied malice theory and the jury was not even allowed to consider lessers. Its insane. This kid got more time than people who plan and carry out the intentional taking of life.

  2. They weren’t allowed to consider lessers? I realize that the California courts like their “Watson murders” (unlike the NY courts, which have proved slightly more sensible), but the jury wasn’t allowed to consider lessers? What the hell kind of logic went into that ruling, and does California precedent actually support it? If so, that’s insane.

  3. Mark, I’m the chick that was villified by the press, the majority of public defenders, and most private lawyers, and most perfectly, by the judge in this case. But notably, against the din of criticism, a few kind and inspirational voices stand out. And I’ve found that those voices came from those I most admired. Like Lee Stonum. And now you. So I thank you, from the bottom of my heart, for gifts you cannot know you’ve given me. You are a champion. Keep fighting.

  4. All I can add is my Amen! It would be a zillion times cheaper, and a good moral reflection on us, as a society, if they sentenced him to a year’s worth of Behavioral Modification Camp and then allowed him to return to society to pay taxes, instead of draining the tax swamp dry with $50K per year incarceration in California. That is a sure recipe for a state to go broke. Ric

  5. I guess California doesn’t have jury sentencing? That’s a great heartfelt summation on a very tough case. I bet the appellate courts reverse this travesty of justice. I could see a conviction for reckless or negligent homicide or voluntary manslaughter, but implied malice? What a bunch of hooey.

  6. I don’t know about California, but in Texas, a closing argument that included references to an attorney’s dying parent would be objectionable because it would (presumably) be outside the evidence. I understand the emotion of the moment, but such an argument might be dangerous, as well. A jury might view it as an unprofessional ploy to win their sympathies and take attention away from the actual issues they were there to decide.

    I considered the summation to be excellent up to that point. My sympathies for the loss of your dad, and for what happened to your client, too.

  7. If I ever need a criminal defense lawyer, and I can’t get Bennett or McKinney, I hope Jacqueline Goodman has a Texas Bar card.

  8. Much in this presentation to admire, but I was very surprised to see the references to the attorney’s own father, whether his sobriety or ill health. Frankly, here in Florida, that’s an objection that get sustained every time.

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