Sunday, August 16, 2015

A Small Justice

Criminal defense work entails mainly the small victory interspersed with damage control. Yes, the two word verdict happens, and it is great, but more often, success is measured in smaller terms. When the smaller variety happens, it is made sweeter when the client is truly deserving. This week I had one of those victories. The venue was not a courtroom. Instead it was a sparse office on the third floor of the Cain Building on the Texas A&M University (TAMU) campus.

TAMU police have had a "bait bike" program on the campus for several years. Yes, that would be correct, a bait bike program. Metro areas have bait cars, we have bait bikes. Nevertheless, it has been successful in catching thieves mainly stealing unlocked bikes, taking them off campus and selling them on sites like craigslist.

There are a couple of issues with the program. Bikes are ubiquitous on the TAMU campus. There is an unwritten rule about using an unlocked bike on the TAMU campus - if you need it, use it - but return it to where you found it. The other is international students use of "community" or feral bikes. This last problem is what led my client into the waters of the criminal justice and TAMU disciplinary systems.

My client is doing post-graduate work in an engineering program. The client has an impeccable academic and personal record. The client is also an international student, living in a small, lower rent apartment with 3 other students from his home country. In addition to post grad work, my client works on campus. The client had been told by a roommate who graduated and left for home that a bike they had used was in one of the racks on campus and was available for my client's use as the graduating student no longer needed it. The bike had been handed down by another international student. It was, as I wrote earlier, feral. A pretty specific description and location was given. Thereafter they communicated several times and each time the former roommate urged again use of the bike.

One night two months ago, after a long day of school, work and around midnight, my client was walking by the bike racks his former roommate had communicated contained the bike. My client's cell phone battery had died. They were tired and still had about a half mile to get home.
After a brief hesitation, they looked through the racks, found what the client thought (and does) match the bike described by the ex-roommate, jumped on it and pedaled the now faster trip home.

Five minutes after getting home, there was a knock at the door, and three uniformed TAMUPD officers tracking the GPS on the bait bike, were at the door. Ultimately my client was arrested for theft (bike valued at $300) but TAMU also sought to discipline as a violation of their theft student disciplinary rule. My client had no idea what the term "bait bike" meant.

Anyone who deals regularly with university discipline proceedings understands they can be problematic. Stephen Gustitis has written on the issue in an aptly entitled article, University Discipline, The Illusion of Due Process. TAMU rule violations are typically alleged so generally even innocent activity can be alleged to have been violated. In my client's case, the TAMU violation did not allege my client intended to deprive the owner of the property, just that they knew the bike they rode away was not theirs. Any number of circumstances could ensnare an innocent given this kind of allegation of rule breaking.

The violation is considered minor for TAMU purposes, so the meeting with the TAMU official was informal and not recorded. For my client, however, it was anything but minor. The client was accused by the TAMU of being a thief. Their culture and family recoiled. There is also the practical aspect of the student visa giving legal status in this country. The accusation, albeit primarily the criminal one, jeopardizes their ability to maintain legal status in this country. A TAMU disciplinary record could nevertheless make a difference in finding work after being degreed as well as permanent residency status.

This is where justice comes in.

The hearing officer, an individual young, nervous, and of small stature, listened to my client tell their story. Under TAMU rules, I act as advisor only, I play no advocacy role. The hearing officer took the written letter from my client's boss at the library that explained that items of chattel property like bikes were traditionally shared and handed down after graduation to other international students. We were excused after an hour of meeting so the hearing officer could think about what they had: The TAMUPD report, our documents, and what my client had said.

After ten minutes, the hearing officer summoned us back in. The small statured hearing officer stood tall and said although the way the charging letter had alleged the violation occurred would make a finding of responsibility technically a correct one, they were going to instead make a finding of not responsible.

Justice was done. My international client was ecstatic.

In his clipped english my client observed, "This gives me confidence in the U.S. system." The client then turned and walked north toward their apartment. I walked south in the dog day August heat, past the uncompleted renovations of Kyle Field, on to my car with those words still ringing in my ears.

A small success. An important success.

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