Chapter 16
In opening up to his parents the previous night, Sterling had not revoked the right to keep his own counsel; the family exchange over Chinese had not made him any less a mystery to them despite his legitimate desire, or perhaps pretense, to obey a kind of newly-initiated Sunshine Law in the family, he himself volunteering to be its test case. The new Sterling wanted to give them the opportunity to read him as an open book. Let there be light to reveal, to cleanse, if not sanitize, his life, if that’s what they want. He had answered the questions submitted by his mother/inquisitor, presenting the whole truth, nothing but the truth. His evidence would surely have produced a flat line on any a reliable lie detector (i.e., no emotion vs. no deceit). He had genuinely wanted Catherine and Pandely to better understand him. If they did, they would surely repeal the draconian punishment they were subjecting him to. Even Draco himself would have shown mercy in the case of a Athenian boy, hardly yet a man, who was merely an innocent victim: it was not he who had uploaded on YouTube those fifteen seconds of his past. On this matter he agreed with his lawyer, Stacy James. But that was Athens seven centuries before Christ and this was pre-historic 21st Century North Carolina. Not a representative fifteen seconds BTW, he would like to remind us. Regardless, there was no denying that he had participated in the film, that the design was his idea, that the art work was by his hand (few others were allowed admission to that domain) and that the execution of a vague script idea had been entirely his. The first and only take had caught everyone in the dorm room by surprise. It was only their professionalism that kept the actors in character and cameras rolling. Sterling himself had been the most surprised; he may have thought he controlled the little things in life but his film exposure brought home the point that the heart or other organs do not necessarily obey one’s best intentions. His surprise, however, was not revealed until second seventeen, lost on the cutting room floor, when he uttered not a curse, only an apologetic “oops.” He had not meant to destroy Babette’s mascara and dislodge a colored contact. He had thus ended his film career prematurely, with an enthusiastic “cut and print” from the young director eager to become the next Bollywood sensation.
Past indiscretions have a way of coming back to haunt. Sterling reasons, however, that reckless behavior in youth does not reveal character flaws; rather, it shows character development – the emerging character of independent spirit, of innocent youth not yet corrupted by society. The boy does not ponder this point excessively; he’ll surely find support for it in his summer reading. In any event he figures that the future is a pretty long time away and most things work themselves out in the long run. In the long run we’re all dead, so what’s to worry about?; on this the boy had found a rare point of agreement with Lord Keynes, the quasi-Marxist. Thus, when William had informed him that Smiley Boy had been publicly aired, he had not become greatly alarmed or angry. Sterling almost never reveals anger. His father, by both example and lecture, has trained him not to show emotions to his opponents. Never show how you feel, son, he had instructed the young pugilist. This was a message Sterling had taken to heart. But he’s only human; he gets angry occasionally (the Trips can lead him to the gate of insanity) but it is in a rare event that he allows that anger transparency. As it turns out, his fifteen seconds of fame had passed away after a few days, and Jeremiah had been able to erase its digital footprint thanks in part to his step-father’s fondness for cease and desist threats. In sum, Sterling seems on the surface pretty mild-mannered; he does his best to project an even keel. So when the first subpoena had arrived, he had not been alarmed; it wasn’t even worth a mention to his parents; the term of the grand jury would expire before they could haul him in. The second subpoena was initially ignored: take one subpoena at a time, Sterling reasoned, line forms at the rear. It was only William, a Martha Stewart fan, who had been alarmed. The snooper had located the subpoenas when idly fingering the #10 envelopes in Sterling’s inbox (mostly family insurance matters relating to Susan’s death). It was, in fact, William who had recognized the judge’s name on the first subpoena; Sterling had not be bothered to pay close attention. Getting a hanging judge had not been foreseen; getting this particular hanging judge was definitely not desirable. It was William who had nagged Sterling not to be his own counsel, but to hire outside help, which he eventually did. These events provide just some of the loosely connected thoughts that run through Sterling’s head as he sits beside Daryl on the Carolinian, bumping its way into RGH at 10:48, in plenty of time for them to get to their 11:15 A.M. appointments. Daryl, the route-planner, has informed Sterling that the trip back will have to be by bus, unless they want to wait for the next train, the Piedmont, at 3:04 P.M. Certainly they’ll be done with the law by then.
Daryl is not a Trip, a William or even a Buffeau. Sterling and Daryl have never been the best of chums, but not enemies either. He has liked Daryl well enough; initially that was in deference to his sister, who contended that he was the love of her life. Sterling had heard this before about every other mec du jour; sadly he would never hear it again. But Daryl and Sterling had never had much else in common. That Daryl was the one who ran over Susan, leading to her death, was an incident that had obsessed, actually catatonized, the boy for the past almost four months. The event, as well as the horrible irony associated with it, has troubled Sterling for the past four days, ever since he was told about it. He had not gotten visibly angry with Daryl, however. A cold shower had frozen his anger and brought him to reason. Among all the people he knew, Daryl had to be described as the most Christian. Sterling is pretty much an agnostic, especially since Susan’s death, but he has nothing but respect for the strength of Daryl’s belief. Some of the Mormon beliefs Sterling finds a bit bizarre; but as he often says “If it’s not bizarre, it’s not religion.” He finds his Orthodox faith no less bizarre, just bizarre in a different fashion. And unlike the Trips, who also hold deep religious convictions, Daryl is at least not such a hypocrite. He is a very honest person, which is all the more ironic in that he had been so slow in reporting the hit-and-run. Sterling can only imagine how much this is tearing him up inside. From the moment the car had slid into a silhouette walking along the darkened road, the issue had never been a legal one. The torment for Daryl had been moral. He has been literally searching his soul and seeking God’s help over the past months. Eventually it dawned on him that the law of man required certain actions; it was this realization that had brought him to Sterling. He has not been avoiding the law, Sterling would tell the lawyer; man’s law had not existed for Daryl these past sixteen weeks. When he eventually decided to come forward, he confided in Sterling, the victim’s brother, and he even asked that the arrest be made by his father. He had actually wanted Sterling to hit him, to administer some sort of primal justice at the animal level. He had wanted Sterling to heal; if striking Daryl was a step to achieving that end, so be it. Sterling did not strike Daryl, of course. Not only would it have been against the fighters’ code to hit a civilian, but it would not have helped Sterling to heal. He knows this without having to think about it. Sterling, however, is being pushed toward the line, on the other side of which is written: I AM FED UP. He questions whether he has yet fully come to grips with Susan’s death; certainly his parents have not finished grieving. That they will now know the details may help the family to heal; most likely it won’t. Healing is not about knowing details.
Sterling thumbs through his stack of #10 envelopes to be dutifully surrendered to the lawyers. Each has been previously opened, its contents consumed, and then replaced in its carrier, all very neatly. Sterling is big on tidiness. The lawyers had asked him to bring all relevant documents; he had grabbed his inbox in compliance. Sitting beside him Daryl is listening to a download, the Mormon Tabernacle Choir’s recent release of American Folk Hymns & Spirituals. Sterling can hear what seeps out the headphones. Nothing on his mind worries Daryl, nor should it, with Sterlin
g beside him. Without being asked Sterling had accepted the job of being Daryl’s worry-wart, much in the manner William serves his own needs. Since Sterling’s own legal issues pale in comparison with those of friend, offering a helping hand is the least he can do. Daryl’s predicament has sidelined Sterling’s own for the moment, a subsidiary benefit. He now feels more confident in facing his own problems, since they are relatively minuscule. Taking on the role of Daryl’s spokesman with gusto, Sterling has concocted an elaborate theory to explain to the lawyers why events happened as they did. The boy, of course, thinks he has a theory to explain almost everything in life, but what he offers in this case is not a theory per se, rather a view of events with rational and plausible explanations. First, Daryl is an extremely bad driver. No one can dispute this, certainly not the first three DMV personnel who failed him on his road test (Each could be a witness, if it please the court). Daryl, Susan had said, should have never been given his license, which he supposedly earned on the fourth attempt. North Carolina does not have a limit on the number of times one can try to pass the test; Daryl is exhibit number one for those advocating tougher regulations to keep bad drivers off the state’s roads. Second, one needs to examine the weather and overall driving conditions for February 14. Wasn’t there a blizzard, a one-hundred year rain and thunder storm or other climatic anomaly that prevented Daryl from seeing Susan, the sole pedestrian on the side of the road? Actually, no. The weather for last Valentine’s evening reflected the seasonal average, dry, with the temperature falling to about 40 degrees. If the weather had been poor, perhaps Daryl would have been paying better attention. That is the very point Sterling offers. Third, was Daryl undergoing some personal trauma that interfered with his concentration, such as the unbearable grief over the death of a parent? In this regard, Sterling is more hopeful.
In fact, Susan and her boyfriend on that fateful day had had an argument, actually only a discussion, and not a very heated one at that. Sterling had listened to one end of it, when Susan was walking down the hall yabbering away. That was when she still occupied the room Sterling now enjoys, which he had moved into full time on the very night of her death. After her death his parents had refused to leave the room as some sort of memorial to their slain daughter. It was they who had insisted that Sterling keep the room; “It’s what she would have wanted,” they said. Sterling had his doubts. He and his sister loved each other, but over the years they had had constant fights over the unfairness (according to Sterling) of her having the room with attached bath while he had endured all his life in one of the tiny corridor closets, which recently had so briefly served in congregate the nocturnal needs of the Trips. After her death Susan would have definitely wanted Sterling NOT to have the room; a memorial seemed a bit over the top; a well decorated guest room Susan would have found more acceptable. After years of battle, it had finally been decided – the morning of Valentine’s Day – by family vote (3 to 1) that the siblings would switch rooms for six months, the very move Sterling was effecting at the moment he received a phone call from hospital admissions. It was he who on the following day had wanted to return to the original room plan. That idea was nixed by his then grieving parents. Pandely had even lost his cool: “Look, son, if nothing else good comes of Suzie’s death, at least we won’t have any more bickering over the rooms. Not another fuckin’ word from you.” That was the only time his father had ever thrown out the f-word that Sterling could recall.
The room battles had once been a source of amusement in the Eumorfopoulos household. In this matter Susan was an unholy mix of advocating women’s liberation and “first come, first served” rights. The decade’s long fight on who gets which room was finally over. It may seem heartless for the parents to recognize this cessation of battle as a positive, indeed welcome, result of Susan’s death; Sterling said it was at best an unacceptable benefit. His father had won the argument over his son not by words; his victory came at the moment when he physically blocked his son from undoing the move he had just finished. Pandely had simply made a threatening fist, something so out of character for him that Sterling had realized that he better leave bad enough alone; he was willing to suffer with the better room, however unfairly obtained. Susan’s abrupt passing, which had hit the family so hard, was still too recent an event for Catherine, Pandely and Sterling to reflect on the humor provided by the clashes their children had had over the rooms. The parents had viewed this as low theater (high theater was serious discussions over dinner), as their children came up with wilder and wilder rationales why one or the other should get the bigger room. (“Boys need rooms to entertain; girls go over to their boyfriends or to hotels,” was one of Sterling’s less than successful arguments.) Once the kids had moved the discussion into the European theater, both at the time studying medieval history in school. Susan supported absolute primogeniture, Sterling agnatic succession. He said she was a whore to birthright; she called him a male chauvinist piglet and slapped him for being called a prostitute; he said she wouldn’t know a metaphor if one pinched her “plump bottomless behind,” an insult which forced him to lock himself in the safety of the gym for the entire afternoon.
The phone conversation that Susan and Daryl had had early Valentine’s evening concerned her refusal to let Daryl pick her up. He didn’t understand why she wouldn’t let him make the short drive; she didn’t want to give him the real reason: she did not want to ride in a car he drove. (Such a petty excuse, Sterling had thought). She insisted on driving whenever the two went out, saying she needed the practice. If he had picked her up, how could she use that excuse and insist they change drivers? These details were educated speculation on Sterling’s part; Daryl had been driving for less time than Sterling, despite his being almost two years older. At the stroke of twelve announcing the arrival of his fifteenth birthday, Sterling had insisted his parents’ sign the necessary form so he could get his a learners permit that very afternoon. His parents asked if it couldn’t wait until breakfast. He replied: why not now? He won, and later that day obtained the first of several provisional licenses along a bureaucratic path that will eventually lead to a NC drivers’ permit at age eighteen. Daryl had gotten a full license at eighteen only when forced to by his parents; Susan’s phone call had ended with her saying that he wasn’t going to fetch her and that she would get there on her own. This implied she would take Catherine’s car, which wasn’t the case, since it was Sterling’s for the weekend, according to their negotiated, non-renegotiable schedule. After she had left, Daryl had called on the family phone line. Susan was not picking up her cell. Sterling said that she had left, on foot, and would be at Daryl’s in about an hour. At that point Daryl had decided to fetch her. Three months after her death, Sterling still feels guilty. He should have loaned her the car. Or he should have known better than to tell Daryl that Susan was walking. And he should not have added, “She doesn’t like your driving,” which could be interpreted in several ways. Sterling, who normally speaks grammatically correct English saying exactly what he intends, even with his peers, had not said: She doesn’t like you driving. He had said what he meant: Susan didn’t like the way Daryl drove. She would do nothing to encourage him to drive, he implied. He did not know if Daryl had picked up on this; now it is too much an after-the-fact kind of question to ask him. Sterling in his mind is still trying to figure out the esoteric points of grammar, which he suspects he may have wrong, as the train bumps to a stop.
They arrive at Stacy James legal corporation with some minutes to spare. Sterling deposits Daryl in the waiting room. He submits the #10 envelopes to the receptionist so the lawyer can review them before their meeting. He then talks with the accountant. He is shown a copy of the check that retained his legal team. The check was drawn on his parent’ joint account over his father’s signature. Sterling has no idea where Pandely has found $15,000. He surely doesn’t keep that kind of cash in the checking account. As government empl
oyees his parents have decent, if modest, annual incomes (together about $70,000, after taxes but before mortgage payment and insurance premiums, which are sizable, and earmarked withholdings, also mysteriously large). They neither skimp nor live hand-to-mouth. Yet their incomes do not permit a lot of savings. Sterling suspects there are some college funds set up by his grandparents, but he is not certain. As in most other families, the Eumorfopoulos general financial situation is never discussed between parents and children, now child. The household operates under some general conventions: Sterling himself is indulged in terms of electronics, sports and education. In contrast, his sister was always low maintenance; she had the large suite (actually larger than the master bedroom); she asked for nothing else and lived on a below-average clothes and entertainment allowance. Sterling has a good set of eyes and ears, however; he could construct a fairly accurate family budget if asked. Sterling knows that he himself does not come cheap. He certainly takes care of at least one of their salaries all by himself. His fancy schooling is expensive, even if much of it is paid by scholarship, details of which he has never been privy to. He is not certain how much, exactly. Even with Susan gone, there could not be much cash dead-ending in the checking account. Sterling knows the real reason they did not buy a kids’ car is the money issue: a decent car, two teenagers and insurance…this was never in the plans, not with the family’s limited cash flow. Sterling also knows that his father puts aside part of his check toward the gym, which is more hobby than income source. That’s a private account to which Sterling has never been allowed access; Sterling’s never been able to discover where his father keeps the passbook. Sterling’s part of the boxing enterprise breaks even. But his father is always helping out his boxers, for example, paying for meals and hotels when they go to tournaments. The two who have made it to the pros never subsequently earned much prize money; in any case they never shared any winnings with Pandely who had discovered them, who in fact was one of their financial backers. Thus boxing as a family investment has not yet paid off. Sterling is going to have to dig into his own pockets if he is going to push the middle Hernández into the Silvers. The gym itself is not a big drain on cash flow, however. Sterling is always finding equipment on Craigslist or through government excess property auctions, which P.A.L. managed somehow to bid on, flipping over the items at cost to Vegas. Boxing gyms are becoming scarcer in the USA; many universities, include Harvard – where Theodore Roosevelt, JFK and Norman Mailer boxed – no longer include boxing in their sport’s offerings; the US military has downsized its boxing support; neighborhood clubs are becoming fewer and fewer. Vegas Gym was initially not that expensive to equip; Pandely himself had built the 16x16 ring over a weekend with some Army buddies. The materials cost $2,800, including the platform, corner posts, canvas, one inch manila rope, turnbuckles and covers, corner cushions, rope spacers, foam padding, retainer rings, grommets, eye hooks, picture frame holder (to hold down the canvas), etc. The food and booze for the construction buddies added another 10%. Sterling had passed along all the receipts to Senior’s accountant who works pro bono for the Vegas’ 501(c)(3).
After Sterling introduces Daryl to attorney Robert Young, the boys all go back to the latter’s cubical. As apparently befits his ranking on the totem pool, Young has a windowless space, which he explains is just temporary while the new one is being decorated. Perhaps the better your acquittal rate, the more attractive the digs, Sterling wonders. Or perhaps a high conviction rate earns you an office like Young’s.
Sterling’s neat pile of #10 envelopes have been raped open, the content letters misarranged among other junk that clutter’s the lawyer’s desk. After introductions Sterling starts to summarize the facts of the hit-and-run. He is stopped immediately by the attorney, who wants Daryl to do the talking. He doesn’t even want Sterling present but Daryl, the potential client, does. The lawyer informs Sterling, therefore, that if he chooses to stay, he must remain quiet. His appointment with members of his own legal team is scheduled at the half hour. This introductory meeting with Daryl is the quarter-hour freebie (advertised so successfully on midnight cable) to establish whether they will become lawyer and client. Daryl has the floor.
“I struck her. It’s all a blur but I know I hit her. When I got back home I just knew I had hit someone. And then the next day my parents learned about it from someone..”
“…A friend of my father was making the calls,” Sterling interjects.
The attorney is certainly confused. One boy claims to have hit a girl with his car. The other, Sterling, is somehow involved.
“We need to start at the beginning. Sterling, why are you concerned with this?”
“I’m the one who Daryl first talked to. And I talked with you,” he explains in answering a question to which Young should already know the answer.
“Yes, I know that. But why are you involved? Were you in the car?”
Sterling realizes why Young is a bit baffled.
“Susan, the victim of the accident, she was my sister.”
The lawyer is taken aback. He looks down at the papers on his desk, thinks for a moment and then rises.
“Sterling, you need to go to the waiting room, immediately. We have a possible conflict here. I need to talk to Mr. James. Daryl, you wait here.”
Sterling figures it’s best not to protest. He starts to head off to the waiting room but has second thoughts and says to the lawyer:
“I understand. I’ll just stay with him until you get back. We won’t talk.”
James is not comfortable with that proposition.
“Not a word. No communication whatsoever.”
Sterling nods. For the next five minutes the boys sit in the room, occasionally looking at each other in silence. James returns a few minutes later.
“Here’s what we’ll do. I’m going to escort Daryl upstairs to another law firm, Aaron & Smythe. They will take your case, Daryl; we just spoke to Mr. Aaron who will speak with you personally in a few minutes. He’s Jewish, is that a problem?
“No,” Daryl says. “I’m not Jewish,” he explains, unsure why. Mr. Young shrugs and continues, talking to Sterling.
“Here’s the condition we must impose on you, Sterling, since you are our client. We want to avoid even the appearance of conflict of interest. That’s why I can’t take your friend as a client. We’re already representing you, even if it’s on another matter. And we may likely have to give you legal advice on this matter, since you have knowledge of the alleged crime ex post facto and may be called to give evidence and thus need legal representation, which is what you are keeping us busy doing. The condition is this: you must desist communicating with Daryl on this matter. It is best if you have no contact with him whatsoever, which would solve the communication problem. That’s what I recommend, but that’s not a condition. You understand the condition?”
“Yes, sir,” Sterling says. Mr. James nods that he has received that commitment from Sterling and he escorts Daryl away. Sterling assumes he’s supposed to wait in the office for Young to return. Instead, a secretary arrives to fetch him for his meeting with Stacy James and the firm’s plea bargain specialist Barry Pitt.
Mr. James’ office is much more what Sterling had expected to see for a lawyer who drives a 750i and appears to charge Sterling by the half-minute. It’s all wood and leather, even if faux antiques as Sterling imagines. Some Civil War relics or replicas adorn the walls.
“As you know, we met with Mr. Miles and Ms. Abernathy this morning. We have two bits of good news. Whatever happens you won’t be getting your friend Judge Winters. We’ll be in District Court. Also, the DA won’t be going after you for felonious dissemination of pornography to minors,” James says, nodding to Robert Young who just enters the room. Young adds mostly for Sterling’s benefit:
“That’s very good news because we don’t want to be involved with Section 14-190.7, dissemination to minors under the age of s
ixteen years or to minors under the age of thirteen years, which is the next paragraph. Of course, they should not be able to prosecute under those statutes because Sterling is not a “person eighteen years of age or older who knowingly disseminates to any minor,” he says using his two fingers on each hand to indicate the quote. “However,” he continues, “Section 14-190.15 ‘Disseminating harmful material to minors; exhibiting harmful performances to minors’ has no such age restriction. But it’s only a Class 1 misdemeanor while the other two are both Class 1 felonies. This DA prefers felonies, I assume.”
“Yes, it’s not much of a gift from the DA, but it’s the thought that counts.”
Everyone chuckles, except Sterling, who doesn’t understand legal humor. Also he has a foreboding, the type he doesn’t like having. James continues:
“The DA made a big deal of this and implied they were going light on you only because you provided the video under transactional immunity. Without that video they could not have taken further action.”
“What action?” Sterling quickly asks. James continues:
“First, the DA on Friday instituted an action in district court under the Law on the Protection of Minors from Harmful Materials, Section 19-9, for adjudication of the question of whether Smiley Boy is indeed harmful to minors. Your video is what is called ‘a true copy of the alleged harmful material’. If they get a favorable ruling, they’ll go after the film’s Durham-based distributors…the postal box Indians.”
“I can see the TV crew interviewing Mr. Miles outside the PO boxes. This, of course, will not hurt Mr. Miles in his election next year,” adds Barry Pitt.
“This type of case only rears its ugly head in election years,” Mr. James says, adding off-handedly to Sterling: “No pun intended.”
“None taken,” Sterling responds, already immune to Smiley Boy jokes at his expense. That type of humor he understands, inappreciably.
“At this time the DA would like to pursue felony indecent exposure...”
Mr. Young is eager to say something, but Mr. James waves him off. The senior partner of the eponymous firm continues. He opens up a statute book and puts on his reading glasses to quote:
Unless the conduct is prohibited by another law providing greater punishment, any person at least 18 years of age who shall willfully expose the private parts of his or her person in any public place in the presence of any other person less than 16 years of age for the purpose of arousing or gratifying sexual desire shall be guilty of a Class H felony.
“That seems pretty clear language to me, even for a statute,” he continues. “That section does not apply to 17 year old Sterling. The DA argued in our meeting that Sterling should be treated as an adult. He implied that he could find “another law providing greater punishment.” Misuse of state property, i.e., shooting the video in a UNC dorm room. We have a lot of statutes, a lot of oddities from before the Civil War; I don’t know what he’ll find. We’ll have to wait a bit. Perhaps he’s bluffing, been watching too many Law & Order reruns. I am almost certain he is bluffing. Maybe he is going through the motions, acquiescing to what Judge Winters wants. Winters might want to twist the law to consider you an adult, but he’s not presiding in this case, fortunately. But we certainly want to avoid a felony here. Felony indecent exposure charges are the only ones that qualify for the SOR and we want to keep you off that. In any case, the bad news is that they will certainly at least pursue misdemeanor indecent exposure.”
“But I had immunity,” Sterling quickly inserts.
“Which was revoked when you refused to answer questions.”
“Can they do that?” Sterling asks.
James turns to his colleague Heather Wiley. She says:
“I’ve reviewed your version of the transcript and we can certainly argue witness incompetence. In other words, they didn’t give you proper instruction so you didn’t know the rules. Using handcuffs, dragging you from your birthday party, we can paint a fairly sinister picture. There was no Miranda. They’ll say they weren’t arresting you, but then why use cuffs? There was certainly intimidation. Of course, you had a lawyer outside the jury room, but your age is a mitigating element. Given this judge, however, and your history with this judge, we’re not likely to win the first round. It’s possibly something for any appeal if they try to use your testimony or the video.”
“Fine, let’s not get ahead of ourselves. Think about some motions, Heather. Hold off preparing them; we don’t want to run up Sterling’s bill unnecessarily.”
Sterling lets out a cackle at this remark, which he considers a deceit masquerading as humor. No one else laughs. In any case, Mr. James motions for Barry Pitt to continue:
“As Stacy noted the DA was eager for a felony. He says that in this state if you’re over 16, you’re treated as an adult, despite what a particular statute says. He said that treating indecent exposure as a misdemeanor trivializes it, lumps it in with “Mickey Mouse” offenses like spitting on the sidewalk or picking a rose from a public garden. That’s not what the Legislature intended when it wrote the statute, he said. We first tendered a pre-trial diversion or conditional discharge, or even a deferred prosecution, given the two year statute of limitations on misdemeanors. These were dismissed out of hand; that’s never a good sign. Then we suggested a guilty plea on only the Class 2 misdemeanor – exposure – in exchange for a hundred hours CS and a pysch write-up. They countered: pleas on both the harmful materials and exhibition, 45 plus 30 days community punishment, a $11,000 (which includes $1000 for the Class 2) and a year of obligatory counseling.
This is too much for the youngest attorney present, Robert Young who jumps up and speaks without bothering to ask permission.
“That’s not negotiation. They’re offering the max community punishment. Fines for a Class 1 misdemeanor are at the discretion of the Court, as per Section15A-1340.23. But $10,000, that’s just begging for an appeal!” he says. Young realizes he’s lost his cool and sits down, but not before muttering “cruel and unusual punishments,” referring to the U.S. Constitution’s Eight Amendment, which begins: “‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments…”
Barry Pitt continues:
“As negotiations go, we’re not yet seeing eye-to-eye. The next step is yours, Sterling. By the way Mr. Miles showed off the morning’s paper with an article saying how tough the recent grand jury had been on pornography and an editorial saying it was now up to the district attorney “elected as a servant of the people” to go after smut. Then he said your parents were good people, as we departed.”
Mr. James takes over:
“Yeah, it’s all about the election. So we’re looking at the two charges: one, distributing and exhibiting harmful materials and, two, indecent exposure. We can plead on both, fight both or do each separately. That gives you four choices.”
“I understand,” says Sterling. James continues:
“Of course we will continue to argue that you cannot be charged with a felony if it comes to that, but I don’t think it will. If he disinters some statute from the 1700s, we’ll just make him look like a fool. Anyway, we needed to test the plea bargain waters. Our strongest argument is that there was, of course, no indecent exposure and no handling of harmful materials. The video captures what happened in a private space, although one owned by the State of North Carolina, among consenting adults. You are neither the owner nor the distributor of the video in question. Furthermore, you have to ask ‘indecent exposure to whom?’ Who’s being harmed? What victim is going to testify? All in all, this is not a winnable case for the DA. This has more to do with political ambition than it has to do with the law. Miles will play in out in the media, but at the end of the day, he will not get a conviction. He will only win votes.”
“You can guarantee that?” Sterling asks.
“There are no guarantees in life, boy. No sure things. But I think the
DA here is only going to create himself a courtroom farce. Anyone else have something to say on this?” James points to Robert Young, who knows the morality statutes verbatim and has a similar grasp of the relevant case law.
“If I may play the devil’s advocate. State v Fly, 348 N.C. 556 (1998) – That’s the case, you’ll remember, sir, in which the judges said the buttocks in Carolina are not ‘private parts’ but that the anus and genitals are. Newspapers had a field day, saying that the supreme court collectively mooned the public, their arguments careful not to show holes or leave anything dangling. Anyway, it ruled inter alia that the statute does not go to what the victim saw but to what defendant exposed in the victim’s presence without the victim’s consent. Furthermore, in State v Fusco, 136 N.C. App. 268 (1999) the SC ruled that the victim’s testimony was not required to substantiate the charge since the State only needs to show that defendant was exposing himself and that victim was present during the exposure and could have seen had she looked. As for the public space issue, in the same case the judges ruled that if a place is open to the public for access, it is also open to the public view and it cites Black’s Law Dictionary on accessibility and viewability in its definition of ‘public.’ By the way, The US Court of Appeals, Fourth Circuit, referred to both these cases in United States v. Phalan. In that case the man received two years probation, a $75 fine and 100 hours of CS. Anyway, you apply all this to the internet, sir, and one can argue that the DA does not need to produce a sole victim who saw the exposure, the exposure itself is sufficient. It’s a messy area. I suppose you’d have to produce evidence that the video was broadcast to the public; that could be difficult. I don’t know if YouTube would voluntarily hand over its records. I’m not a media expert and there are several Con Law issues raised. There’s much worth including now, setting up for a possible appeal.”
Various lawyers turn to Professors O’Connor and Drake (ret.) who have been sitting in the corner, silently observing the legal minds at work. They nod but say nothing.
“You’re saying the DA could win?” Sterling asks to no one in particular. Young answers:
“I don’t know the competence of this particular DA. He seems pretty much like a politician with a mail-order law degree. But a competent DA could present a strong case, yes,” Young says without answering Sterling’s question. Sterling, of course, knows the question has not been answered and that, in itself, is a sufficient answer.
When Smiley Boy was shot some sixteen weeks before, Sterling had no idea (because he had never thought about it) that there was a law specifically against indecent exposure, not to mention several supreme court decisions interpreting that law, as well as a federal ruling. Law is not his field and he hasn’t committed the North Carolina statutes to memory. Sterling is not naïve; he knows that society in general frowns upon exhibitionism; some friends whose parents are nudists are always complaining of harassment even when sunbathing on private islands off of Wilmington. Sterling, himself, does not see much use in such a law; he prefers the way that many European countries deal with the subject: ignoring it.
North Carolina in most respects is conservative enough for Sterling. He would like to see speedier justice, however. The state only sent off 43 murderers between 1984 and 2006. As of last April 9th (around the time Sterling was writing a paper on this subject, then as now having command of all the relevant statistics) 150 men and four women still resided on death row, with the state providing three-squares, medical coverage, limited entertainment and recreation while they waiting for their lethal injections. His parents, Sara, William and most everyone he knows share with the Europeans a distaste for state-sanctioned murder. In fact, there’s been no execution in North Carolina since 2006 and Sterling thinks the state is wasting a lot of taxpayers’ money in delaying jury-ordered punishment. It’s not that capital punishment makes economic sense. Sterling got his hands on an advance copy of a journal article due out in December that says that repeal of the death penalty could save the state $11 million annually, mostly relating to extra defense costs for capital cases in the trial phase, extra payments to jurors, post-conviction costs, resentencing hearings, and the extra costs to the prison system. This grates on Sterling who is even more a fiscal conservative than he is a social conservative. He hates to see the state forever wasting money and agrees with his Tea Party brothers-in-arms that something must be done. The two DAs assigned to his own case are doing nothing positive for the public good, just wasting money going after the most innocent of offenders, himself. State resources should go to finding and punishing hardened criminals not stupid boys, he reasons. Yet public exposure is taken seriously in North Carolina. And stupid justice sometimes prevails. He can cite another example.
Sterling, even though he has been recently unplugged, still has plugged-in friends. William had last night given him a print-out concerning the case of Michael Bullard of Raleigh who was denied a alarm systems business license on the grounds of lack of good moral character. Partly at issue was his conviction for indecent exposure in the year 2000. Here is an extract of the decision of the administrative law judge, who ruled in favor of Mr. Bullard:
Petitioner’s conviction for indecent exposure in 1990 resulted from an incident in which Petitioner pulled into a parking lot to investigate extreme pain in his groin area and was unknowingly observed by a woman walking through the parking lot.
Petitioner had been to the emergency room and subsequently to a urologist shortly before the incident, and the urologist diagnosed him with a medical condition known as Epididymitis. Petitioner was prescribed pain medication and an antibiotic for the condition. Epididymitis is an inflammation of the epididymis, which is a mass of twisted ducts or tubes situated on the upper part of each testicle. The inflammation is usually caused by infection and is painful.
On December 20, 1989, while Petitioner was driving to a business meeting in Raleigh, he experienced severe pain in his groin area. Petitioner decided to stop at a McDonald’s Restaurant to investigate what was causing the pain. Because the McDonald’s was very crowded and Petitioner was pressed for time, he decided not to use the restaurant’s bathroom but instead to drive to a secluded area of an adjacent shopping center parking lot and examine himself there.
Petitioner pulled into what he thought was a secluded parking space and examined himself while seated in his truck. Petitioner’s truck had a prominent sign on the side door with the name and number of his business.
A woman walking in the parking lot observed Petitioner while he was examining himself and became very upset. The woman told Petitioner she was going to call the police and did call the police from her cell phone. Petitioner voluntarily remained at his truck until the police arrived. The woman pressed charges and as a result, Petitioner was charged with indecent exposure.
Under the advice of his legal counsel, Petitioner pled guilty to the indecent exposure charge.
Petitioner did not tell the woman who filed charges, the arresting officers or the trial court that his urologist had recently diagnosed him with Epididymitis.
Whether Sterling is as innocent as poor Mr. Bullard is not at issue. The point William was making in giving Sterling this report is that indecent exposure in Carolina is an issue not unlike capital punishment, in which emotion tends to obscure the legal, sociological or logical arguments. In other words, it’s an issue that a cautious, conservative, risk-averse person should avoid. A court victory is far from certain. And Sterling would not be given the opportunity to sweet talk a jury; he would face a lone District judge.
“And if I plead guilty and pay the fines and do the community service, will the conviction be part of my permanent record?” Sterling asks. Young answers:
“Not necessarily. Under ‘NCGS § 15A-145. Expunction’ convictions can be erased after two years. There’s are conditions of good behavior and procedures to follow.”
“Instead of pleading, if there’s a trial and I’m foun
d guilty, is it still expugnable?”
“Yes, same conditions and procedures. Guilty is guilty.”
“I had that earlier PJC…” Sterling begins as he’s cut off by Mr. James.
“Let’s not get ahead of ourselves. I think we’ve given Sterling enough so he can make a decision. We told the DA we’d get back to him COB tomorrow. If you want an arrangement, tomorrow’s the chance. There’s no reason to drag this out.”
This leaves Sterling 24 hours to decide whether he’ll plead guilty or not guilty, take the best deal he can get or stand trial. First, whether to call the DA’s bluff regarding a felony and then whether to throw himself on the mercy of the Court, and cop a plea. Sterling suspects that he might not be automatically eligible for an expungement of a guilty plea since he had had the earlier Prayer for Judgment Continued for bikegate. One erasure of a conviction is all you get in North Carolina, although the PJC is not technically a conviction. As far as he knows his record is technically clean. Pandely had said he would make sure all the boys would have clean records, if they behaved themselves. They had consequently all lived spotless youths. Even the Trips had had no post bikegate arrests, much less convictions, but then their music career keeps them busy. Expungement is something, Sterling fears, which his lawyers, billing at $350 per hour, would have to eventually work out with the State bureaucracy of Justice. The deferred prosecution or punishment without a conviction of the PJC had seemed so smart at the time. Little did he know that he was using his only trump. The PJC had seemed unimportant five years ago; Judge Winters’ court was then all a game to Sterling, a stage for showing off. Even Smiley Boy started out like a game. It is one no longer. The legal arena is not an environment for game-playing, something maybe Sterling has finally learned.
During this discussion Sterling was sensing that there could be various grounds for appeal if he were convicted. That’s apparently why the non-verbal professors O’Connor and Drake were interested. Were they lusting for a fight, a conviction and an appeal on Constitutional issues? If he pleads guilty, however, an appeal is nearly impossible. There are only a limited number of proper grounds for appeal for someone who pleads guilty (as opposed to one judged guilty in Court). One can appeal on the basis of incompetent lawyers, of course. Also, if what Sterling were to admit to were not actually a crime or if the court did not have jurisdiction over him. These are possibilities the lawyers could explore, but not until later, for Mr. Miles, the chief lawyer, who liked to order his horses and carts, was adamant that they “not get ahead of ourselves.” If Sterling appealed a plea bargain, he could possibly argue that some of the evidence was tainted or that some of his various constitution rights had been denied; but if that had been the case, why would he have pleaded guilty in the first place? He would have stood before the court and agreed to the guilty plea. At that time he would have had to answer questions from the court regarding whether he had had sufficient time to talk the matter over with his attorney, whether he understood the ramifications of the plea, whether anyone had given him inducement to compel him to take the plea, and so on. So, to go back on appeal and say that he didn’t know what he was doing when he pleaded guilty would be like saying that he had committed perjury to the court. We then get the old adage: “Were you lying then? or, are you lying now?” Because, at some point, he would have lied to the court. At this point in time, pleading guilty doesn’t seem like a very good idea. Sterling will have to sleep on this and get back to the legal team before close of business tomorrow.