Tales from Kentucky Lawyers

2. Theft

2 THEFT Most attorneys consider theft to be one of the most difficult crimes to defend, as the jury typically consists of persons who value honesty. Yet, on occasion a few jury members themselves might suffer lingering feelings of guilt for having stolen items in times past; to deny the reality of their own conduct and to condemn such behavior by others, even these jurors will likely find the defendant guilty of the accused theft. Stories in the theft category are not about jurors per se. Instead, these accounts tend to be on the humorous side, especially when the accused gives unexpected responses to questions posed by lawyers and judges. 29. "CONVICTED THREE TIMES" When I was county attorney during the 1940s, one day I read in the Courier-Journal where the county court clerk had shortcut the Kentucky Department of Revenue for more than thirty-five thousand dollars for fishing and hunting licenses and various other state taxes. So I thought it my job to throw him out ofoffice. So I got an order from the county judge, and we took his keys and put him out. The commonwealth attorney at that time didn't want to prosecute him as he liked him pretty well. It turned out that this county clerk had spent all of the stolen money gambling on a riverboat, a shantyboat on the banks ofthe Ohio River here at Maysville. He had one of the most important lawyers in Maysville as his defense counsel, and I got him indicted on three different charges. I tried 24 Tales from Kentucky Lawyers him on the first charge, convicted him, and then his attorney appealed it to the court of appeals, which meant it would be hung up for two to three years. The next term of court, I tried him on the second indictment and convicted him. His attorney likewise appealed that decision, and then the next term of court, I tried him the third time. After I tried him and convicted him the third time, his attorney gave up; thus he went to the penitentiary for three or four years. John H. Clarke, Maysville, February 20, 2002 30. "THE CLASSIC THIEF" When I was public defender, when I first started practicing law, I was defending this guy, Charles Nelson. Charles was doing time in prison for some kind of theft. He had a terrible record. He had a rap sheet a mile long, but it was all property crime. There wasn't a violent offense on the list. He wasn't violent. He was just a con artist and a thief. He was about forty-five years old. He got word to me that he wanted to file a motion for shock probation in his latest conviction. Shock probation was passed by the legislature about 1970. The concept is that usually when a judge sentences someone to the penitentiary , that person loses all jurisdiction. They then become a ward of the State Department ofCorrections. The legislature said maybe the judges should retain some jurisdiction so that when a young offender goes in there and sees the penitentiary for the first time, he is shocked into appreciating the seriousness of his crime, so they ought to let him out. Maybe do just 30 to 60 days, or something like that. So they are setting shock probation. Ifyou file a shock probation now, no sooner than 30 days after you sentence him, and no longer than 180 days. Well, Charles Nelson wanted to file shock probation, but he had been convicted so many times and been to the penitentiary so many times that I knew that the judge wouldn't grant it. I said, "Charlie, you don't have a prayer. The judge is going to look at your record and he is not going to grant you shock probation." Charlie said, "Well, I want you to do it anyway. It will give me something to do, something to think about while I'm in here." I said, "Okay." So I got my pen and said, "This is going to be embarrassing, I've got to tell the judge why Charlie Nelson, who has got a long criminal record of theft and this kind of stuff, should be THEFT 25 granted shock probation, which is usually for first-time offenders. So I want you to give me some explanation about your crime, about your situation, that...