KEEPERS

My friend, Bobby Howe, the Plea King of the Charleston County Court of General Sessions, was without a doubt the quickest lawyer on his feet I ever met. He once put me in a case representing a husband and wife charged with trafficking more than 100 grams of cocaine. That’s Trafficking 3rd Degree, a violent felony carrying a mandatory twenty-five years in prison, no probation, no parole. To boot, they were also charged with possession or distribution of drugs in the proximity of a school, also a violent felony carrying fifteen years on top of the underlying drug sentence. To put it in legal terms, they were in some really deep shit.

What they really were “keepers” in the parlance of the drug trade. They kept the real trafficker’s cocaine in their house for safekeeping, literally in a safe only the trafficker had the combination to open. They were chosen for the job because they had no prior records and neither of them used or sold drugs. The husband worked a legit 9 to 5 job while the wife was a student at Trident Tech studying to be a phlebotomist. And how much were they paid to be keepers? Not much more than the free rent on their nice home. It seemed like a good deal to them because they mistakenly thought, as long they weren’t actually doing the dealing, they’d be safe too. They thought that right up until they were led out of their nice home in handcuffs following the execution of a search warrant by the Drug Task Force that found the trafficker’s couple kilos of cocaine they were keeping safe in his safe.

I wasn’t privy to where Bobby got the sizeable fee we were paid but was glad for the referral. We reviewed the search warrant and found it was solely based on information provided to the Drug Task Force by a “confidential reliable informant.” We naturally asked our clients who knew what they were doing and both said they never told anybody they were keepers to keep from being robbed or worse themselves. From that we logically deduced it was the actual dealer who was the informant. He’d probably been caught dealing and offered a deal in exchange for him ratting out the person he got his drugs from.

Thus began the legal battle to compel the Drug Task Force to disclose the identity of the so-called confidential reliable informant. The law recognizes the government has a privilege to withhold the identity of confidential informants; however, it is not an absolute privilege. A court can order disclosure when required by fundamental fairness. The United States Supreme Court held the courts must balance the need to protect informants and to encourage citizens to provide information to police against the defendant’s right to prepare and present a defense. The privilege is most frowned upon when the informant was a participant in the alleged crime, the only witness relied upon obtaining the warrant, and it can be shown the informant may have information establishing the defendant’s innocence.

The Task Force steadfastly denied the dealer was the informant forcing us to file a formal motion to compel his disclosure. As the date for a hearing approached, the Solicitor assigned to prosecute the case requested a meeting. He conceded our clients might be patsies but maintained, even if we were right about the dealer being the snitch, our clients would still be guilty of the crimes alleged and still be facing the minimum, mandatory sentence of twenty-five in prison. Bobby just smiled sensing the makings of a plea bargain. After some back and forth Bobby negotiated a sweetheart deal for our wayward couple. The clients would plead to Trafficking, more than ten but less than twenty-eight grams, still a violent felony but only carrying from three to ten years and eligible for parole and also plead to possession or distribution of drugs in the proximity of a school, carrying up to fifteen years but also eligible for parole, with the sentences to run concurrently. Furthermore, Bobby could pick which judge he wanted to plead before.

Bobby explained to our clients, if we lost our motion, they would almost certainly have to serve the mandatory twenty-five-year sentence, while, if they took the plea they could serve as little as three and a third years before making parole. Probably a little on the rosy side as legal advice goes but arguably within the realm of possibility. Being young kids scared to death of spending eternity in prison, they wisely decided to accept the plea.

Bobby picked the Honorable Richard E. Fields to plead before. Judge Fields was an old family friend who genuinely loved Bobby. While it no longer mattered since our clients were pleading guilty, Bobby still argued to Judge Fields it was probably the real dealer getting away scot-free who ratted out our clients. We both, Bobby for the husband, me for the wife, emphasized our client’s young age, lack of a prior record, and sincere remorse for getting themselves involved in such a serious crime. Judge Fields spoke nicely to our clients and almost apologized to them for having to impose concurrent sentences of ten years for Trafficking 3rd Degree and seven years for the proximity charge. As we let out a big sigh of relief and turned to leave, Judge Fields almost apologized to us and said under his breath, “I couldn’t do any better than that.”

This is the part of the story where Bobby being quick on his feet paid off for our clients. Without skipping a step, Bobby performed a perfect pirouette in the courtroom, turned back towards the judge and said, “Well, Judge, since you asked, Trafficking 3rd degree is still considered a violent offense under Code Section 16-1-60 requiring that they serve one-third of the sentence, or three and a third years, before being eligible for parole, so if you gave them the same sentence but switched the ten years you gave them for the trafficking charge with the seven years you gave them for the proximity charge, it would be the same sentence but they’d only have to serve two and a half years rather than three and a third years before being eligible for parole the way the way the sentence is now.” It surprised Judge Fields so much he revised his sentence the way Bobby requested.

Back at the office, it took me a pencil, paper, calculator, and a good five minutes to calculate what Bobby had calculated in his head in the time it took him to turn around. My dear friend may have at times needed remediation on the law, procedure, and evidence, but he was lightning fast on his feet in a courtroom. Any reasonable lawyer, me included, would have been thanking their lucky stars for the incredible deal we’d gotten our oh so guilty clients, but not Bobby. He made a great deal even better so fast it would have made your head spin as fast as he spun around in the courtroom that day.