This is an excerpt from Jim’s play, Random Contingencies. Two lawyers have switched prosecutor and defender roles and discuss their misgivings about the criminal justice system. Later this play was converted into a novel with the same name. The novel is available in Kindle ebook format from Amazon, where a sample from the opening pages can be read. The author spent several years as an investigator for a prosecutor and an Attorney General before beginning to work primarily for defense attorneys. The play Random Contingencies is copyright 2015, and this extended extraction may not be reprinted without permission of the author.

SETTING: a bar

AT RISE: ARTHUR NIXLER and STERLING are relaxing after work

STERLING
Glad you could make it, Arthur. I just wanted to celebrate your move to the prosecutor’s office. Big switch for you, huh? Do you think you’re going to like prosecuting as much as defending?

ARTHUR NIXLER
It’s all law, Sterling. As a defense attorney I tried to plead out the obvious bad guys, but I saw my role as attempting to assure that everybody got due process.

STERLING
Yeah, whatever that is.

ARTHUR NIXLER
Don’t you think we have a role to play? Aren’t we lawyers the guys who are supposed to make sure that our system of justice works, that it’s not corrupted by inattention to the rules and order?

STERLING
That’s certainly a noble interpretation of what we do.

ARTHUR NIXLER
You don’t agree?

STERLING
I don’t disagree with the concept, Arthur. I just don’t think it gets applied in quite so idealistic a manner. Let’s face it. Prosecutors have more cases than the courts can handle, so they accept pleas on about 95 per cent of them, often for considerably less than they think fits the crime. The plea is an expedient demanded by the courts. The consequence is that truly bad guys get off with lighter sentences than they deserve and…

ARTHUR NIXLER
…And some truly innocent guys take a plea because the threat of a long prison sentence from a guilty verdict is too much of a gamble for them to face. That’s another expedient. A guy who didn’t do anything bad gets a criminal record because his defense attorney recommends a plea, maybe because that attorney doesn’t like to go to trial, maybe because he genuinely believes the case can’t be won, or maybe because he’s just plain incompetent.

STERLING
Jeez, Arthur, are you saying you pleaded some guys who were innocent? I never thought I’d hear that from you.

ARTHUR NIXLER
I’m saying I don’t know, but that I think it probably happened. I defended a lot of guys and brokered a lot of pleas. If somebody insisted on going to trial we went, but I usually tried to talk them out of that. And if they knew they’d have to wait months in jail for the trial to happen, I didn’t have to talk too hard. I suppose that at least one of my clients must have taken a plea even though he was innocent. He just didn’t want the likely alternative, a guilty verdict at trial and a long prison sentence for something he didn’t do. Turn it around. You probably prosecuted someone who was innocent. We do what our role demands, Sterling. We try to bring a sense of ethics to it…

STERLING
…Speak for yourself.

ARTHUR NIXLER
…But ultimately we don’t have the time or resources to eliminate all our doubts.

STERLING
Brokering pleas. That’s a good term for it. Sounds like real estate. That’s what we are, aren’t we, deal brokers?

ARTHUR NIXLER
They didn’t tell us much about that in law school, did they? So how are things going for you since your boss lost the election?

STERLING
You mean since I had to find another job. I’ve got to admit it was pretty hard at first. I thought the boss might take me with him into private practice, but that didn’t materialize. He had his own ideas that he hadn’t told me about. Maybe he was afraid that if he talked about losing the election he’d put a curse on his chances. Needless to say, his plans did not include me.

I checked in with some of the big firms, and I had a couple offers, but they really didn’t appeal to me. I suppose at some time in your own past you had a similar experience. They were looking for someone to start at the bottom, working ten-hour days plus some weekends, doing prep work that the senior partners took into court. Not my vision for my future, spending years struggling up the ladder to senior partner. So at least for the near term I’m a sole practitioner in one of those office suites, the kind with a shared receptionist who answers the phones for several offices and also does a little secretarial work. But mostly I’m a one-man operation. And you know what? I like it.

ARTHUR NIXLER
We’ve switched roles.

STERLING
You got it, pal.

ARTHUR NIXLER
You’re taking criminal appointments?

STERLING
Oh yeah. Whatever I can get. In fact, I saw your name in one of the files that got passed on to me. Apparently you represented the same guy back when he was first charged.

ARTHUR NIXLER
Who’s that?

STERLING
I don’t remember his name. You know, all that registers with these cases is the circumstances, not the names. It’s a murder case. Client shot a guy during a sidewalk robbery. You tried to get him to plead but he refused. He represented himself briefly, until a judge insisted that he have an appointed attorney at least as an advisor. The kid’s a pain in the neck who has set himself on a course for a sentence of life in prison. If he had taken your advice he probably would have gotten off with maybe five years, even less for good behavior.

ARTHUR NIXLER
I think I remember that case, the circumstances anyway, not the name.

I want to tell you something I’ve never told anyone else. Becoming a prosecutor has got me thinking about my own past. When I was in college, back in my early twenties, one night as a prank I stole a tow truck. I was in a bar with a couple other guys and we’d all had too much to drink. The towing company was next door and they left a truck parked at the curb, ready to answer calls. There was an attendant in the office, but he was watching TV. We could see him through the window. So I climbed into the cab of the truck and the other guys jumped on the bed in back. The truck was parked on an incline, so I figured I’d just put in the clutch and let it roll down to the corner.

Well, when I was in the cab I realized that the key was in the ignition. So after we had silently rolled the truck down to the corner I suggested that we take it for a drive. I started it up and drove it down to Main Street. I found a switch that turned on the emergency lights and I flipped them all on. Then we left the truck parked there in the middle of the street, lit up like a Christamas tree.

It was just supposed to be a joke on the attendant, right? It went well. I found out later the police contacted the attendant and asked him if he knew where his truck was. He looked out the window and saw a big empty space where the tow truck was supposed to be. We had a good laugh over it, and no harm was done. Later, when I began to represent criminal defendants, I got a kid who was charged with car theft. He said it was just supposed to be a joy ride. I pleaded him and he ended up with a criminal record. It occurred to me that the same might have happened to me, and that my future would have been changed because of that one incident with the tow truck. No law school. I wouldn’t be sitting her talking with you now if I’d been arrested.

STERLING
(puzzled)
Okay. You’re point?

ARTHUR NIXLER
If we think we know who the bad guys are, I guess we’re presuming that we’re the good guys.

STERLING
Okay, my turn. A guy I went to grade school with, he showed up in the police reports that ended up on my desk in the prosecutor’s office. He probably murdered his wife. She drowned, but in questionable circumstances. We had a body, we had a motive – a brand new insurance policy in his favor – and we had a suspect, my old grade school acquaintance, but we didn’t have anything else, not enough to charge him, certainly not enough to bring the case to trial.

He phoned me – can you believe that? He wanted me to intercede, as an old grade-school buddy, even though we weren’t really close in school and we hadn’t spoken in years.

ARTHUR NIXLER
What did you do?

STERLING
It startled me, him calling like that. I actually didn’t know what to do, but all I could think of was that I didn’t want to talk to this guy. I hung up.

That was a few years ago. He was selling used cars. I don’t know what’s happened to him, but I believe he’s a murderer who got away with it. So, no criminal record for him, but even without a record he’s definitely not one of the good guys.
(pause)
It’s just another war story. It’s true, but I’m not sure that it means anything.