top of page

Have Mercy on the Criminal


I feel strongly that my political beliefs come from one very basic idea: We are defined by the ways we treat the least among us.


I often think about not just politics and policy, but how the law treats those marginalized, oppressed, poor, and weak. In my old days and ways as a private practice lawyer, I kept my legal and ideological worlds somewhat separate. But I’ve had a lot of time now to think of justice and equality in deeper and more philosophical ways (because no one is stressing me out about their case, divorce, or proposed jail time – that helps).


A lot of this pondering comes from how submersed I am in memoir. Reading about other people’s misery and triumph over misery has a way of doing that to you.


(I recently read Bryan Stevenson’s Just Mercy and Anthony Ray Hinton’s The Sun Does Shine. I highly recommend both. I also wrote a forthcoming blog about my reflection on the death penalty in light of what happened to Dru Sjodin on my college campus in 2003, and her convicted killer being sentenced to death [and later not], called “Walk With Me.”)


Both books challenged me to question the judicial system, mercy, punishment, and forgiveness. But Ray’s in particular caused me to get a bit sour. As I paged through about the last fifteen years of his wrongful thirty years on death row, thanks to his initial (listless) defense attorney, a prejudiced judge, and the entire system stacked against him, I wasn’t terribly satisfied with my answers.


But then I saw a great local story and remembered a true servant of justice who keeps my faith in our system firmly grounded.


The judges I appeared before in North Dakota are not the same judges I read about in those two books. North Dakota is fortunate to have benches who are full, and some unfortunately not full enough, of competent and ethical judges who work very hard.


I’ve never wanted to be a judge. Ever. I was shocked when I realized some of my colleagues dreamed of it. And if you asked me today: If you could, would you return to practice or try the bench? My answer’s the same as it was before.


I would describe my means of practice as: Get me into the courtroom and watch me go. I had one position to take – that of my client’s. I didn’t decide what the law said and how to apply it. I read the law and then found dissents, objections, different opinions, creative arguments, and pleaded for my client. My job was not to make the difficult decisions, it was to advocate for my client.


Maybe that’s why I’ve never wanted to be a judge. It looks really hard.


But there’s one judge from my time in practice who makes his impossible job look, well, easy. His job isn’t easy. Far from it. He’s just that good.


A few of my good friends clerked for him after law school. He was a federal judge seated in Bismarck. Outside of that, I honestly had no idea who he was (let’s not kid ourselves, as a young lawyer, I probably still hardly understood the differences between the federal and state courts or where to find the courthouse bathrooms).


It was actually one of my friends who told me that I should apply to sit on the CJA panel (private practice attorneys who take appointments as criminal defense attorneys in terrifying federal cases). I thought she was crazy when she told me, because I was a super-baby lawyer, but she assured me I’d be fine and CJA attorneys were needed.


I applied and even though my senior partner laughed out loud at the question about my trial experience, which he called “zilch,” as opposed to my carefully crafted “handful,” I was accepted. Still convinced I had no idea what was going on, I latched on to one of the Federal Public Defenders, who was a very smart woman. She encouraged me to take a class she was holding at the courthouse for CJA attorneys and I gladly obliged.


As I sat there on an early spring morning, being overwhelmingly intimidated by the nature of the federal building, I was also awestruck by meeting him.

I was standing in the hallway during a break when he walked right up to me. As he stopped, I was pretty sure I recognized him (because there are very large portraits of the sitting and retired federal judges in the building that are quite hard to miss), but I wasn’t absolutely sure. He’s tall and he has a powerful, but reserved stature that I can’t quite explain. I definitely felt his presence.


As I managed to shake his hand and answer my name, I’ll never forget how he introduced himself.


“Dan.”


He wasn’t Judge. He wasn’t even Judge Hovland (because that really would have tipped even me off at the time). He was Dan.


Although such a gracious introduction, I was definitely alerted to reality: I was conversing with one of North Dakota’s two federal judges. I let him know that my friends clerked for him and that I was happy to be at the small seminar that he was arriving to speak at.


(We were in a meeting room in what felt like the basement. Thank God the class wasn’t led in one of the courtrooms that are just shy of being the size of an NCAA basketball arena. One early look there and I may have bolted).


Fast forward a few years. I had very limited appearances as a CJA attorney and hadn’t seen much of the inside of those courtrooms. And then I was retained by a defendant who landed there in a high stakes case. The case took time off my life and for a few years, I worked harder at it than many combined. It became an extensive education in state and federal court jurisdiction, federal drug, firearm, and conspiracy law, mandatory punishments, exceptions, and more. I also had the uphill battle of obsessively trying to learn the Sentencing Guidelines and accompanying caselaw.


After my reduced longevity, gray hair, a lot of homework, a few hearings, and about ten other more senior lawyer friends holding my hand, I made it to the sentencing phase and the case was resolved. Although it was my first sentencing in front of Judge Hovland, I immediately realized how much I respected him and what an honor it was to appear before him.


That case felt brutally challenging, but it gave me the great reward of learning how to practice in the federal system. And after all the hard work and my new admiration for Judge Hovland, I decided to stay active on the CJA panel and handle the appointments that came my way.


The cases were always challenging. And quite honestly, they were scary. What was happening in North Dakota in and around the oil boom were not in the ads to visit Medora. The crimes were real, the organized crime was no joke, and the stakes were always high. Mandatory minimums, three strikes, life sentences, no parole, the command of the sentencing guidelines, US Marshals who looked like WWE wrestlers, and the sobering courtrooms made it not for the faint of heart.


And the pay was much less than what I billed privately. And 9.9 times out of 10, my clients spent all of our time together behind bars. And in jails not in Bismarck. I put a lot of miles on my rig, and to my dismay, began to fluently speak jail jargon.


I wanted to bail (pun intended) a lot. Mostly when I first met my cuffed client and heard the maximum sentence, and anytime I arrived at a jail. But I never did, for two reasons:

  1. My belief in the criminal justice system and the calling I felt to be a part of it; and

  2. Because I liked practicing in front of Judge Hovland that much.

As my time went on, I considered his courtroom my favorite to be in.


If the way we met didn’t tell me everything I needed to know about him, the way he ran his courtroom did. He listened, was patient, and was fairer than I imagine I ever could be in that climate. He was also insanely overworked for a solid decade. But true to his selfless nature, I also remember him helping out in another state when they were short on judges. Yet during most of my time as a CJA attorney, the District of North Dakota was also short on judges. But despite his workload, I never saw a different personality.


About a year before I got sick, I was in a sentencing hearing with him. As he began the proceeding, he asked the standard question of my client as to whether they could read and write. My client assured the judge they could do both, but not without their reading glasses, which they had to leave at the jail. In an instant, Judge Hovland asked his law clerk to go and fetch a pair of his reading glasses. The clerk brought them to my client at counsel table and the sentencing hearing went on. But I was absolutely taken aback.


The judge who sat in a black robe, about a football field away and high up behind a bench, gave my client his own glasses. My client in a jumpsuit, who was headed to BOP. Maybe even to die there. The client who led a hard life. Who made mistakes.


After that hearing, I firmly believed Judge Hovland was the best judge I’d ever have the honor of appearing before. Because of him, my work in that arena felt like a privilege.


I left a lot of hearings in state court sputtering the whole way back to my office and complaining about unfair, untimely, crabby, [insert whatever hit me crossways in domestic work], judges, but I truly never left a hearing with Judge Hovland where I didn’t believe in justice, equality, and decency. Ever.

A few weeks ago, I saw a new story about Judge Hovland receiving a big award. He was honored by the North Dakota State Bar Association with the distinguished Gerald W. VandeWalle Medal. The award recognizes dedicated servants of the law in honor of our beloved and long-serving Chief Justice of the North Dakota Supreme Court, Justice Gerald VandeWalle.


My dear old law professor and friend, Judge Peter Welte, nominated Judge Hovland with the following words (Judge Welte is now a federal judge alongside Judge Hovland):


“Judge Hovland is a man who is astute, considerate, humble, dedicated, and one of the most decent human beings I have had the privilege of working with in my professional career. All of these are attributes that are core to the namesake of this award: Justice Gerald W. VandeWalle.”


And Magistrate Judge Miller, whom I often appeared before and also greatly admired, noted Judge Hovland’s “respectful treatment of all who appear before him” and “his infinite patience.”


When I read those words, all I could do is smile and say, “Yes.” Dedication and humility. Considerate, respectful, and infinitely patient. That’s the judge I admire so much.


If you’ve read Unwillable and got to the part where I had a panic attack at my desk on a Tuesday. On what turned out to be my last day ever of practice. When I called my husband to ask him to take me to the hospital. But somehow managed to pick myself up, dust myself off, and finish out the important work that a judge had nominated me to do.


The judge in the book whom I said I could not and would not let down.


Wonder no more who that judge is.


He’s the judge whom I saw in real time live out the ideal I’ve held near and dear to my heart for so long.


Congrats on your big award, Judge. You deserve it (and a really cushy retirement someday!).


And Just Keep Swimming, my friends. But never forget that a little compassion for those down on their luck can go a long way.


“Have mercy on the criminal Who is running from the law Are you blind to the winds of change Don’t you hear him any more


“Praying Lord you got to help me I am never gonna sin again Just take these chains from around my legs Sweet Jesus I'll be your friend” ~ Have Mercy on the Criminal by Elton John


*For the story and photo of Judge Hovland with Chief Justice VandeWalle, click HERE.


__________


/ / The JM Stebbins blog is an autoimmune encephalitis blog from former lawyer and autoimmune encephalitis survivor, Jackie M. Stebbins.


Jackie M. Stebbins is also the author of Unwillable: A Journey to Reclaim my Brain, a book about autoimmune encephalitis, resilience, hope, and survival. / /

Comments


bottom of page