The Mercy Rule

When I used to play ping pong in the garage, we followed the “skunk rule”.  If anyone went up 7-0 on their opponent, they clinched the game and won early, without needing to go all the way to 11 points, like normal.  I’ve heard other people call it “the mercy rule.”

I just finished a trial involving a state prisoner.  He was accused of possessing a homemade syringe.  The syringe itself was an interesting design.  He had a needle, we don’t know where he got it, but the rest of the syringe was made from common items in the jail.  The needle was attached to a ballpoint pen that the inmate had hollowed out.  He had taken out the ball point, and replaced it with the syringe.  He also took out all of the pen components at the other end, where he put a piece of rubber that was sealed airtight.  The completed syringe works a lot like a turkey baster.  You squeeze the piece of rubber, move your needle over the drugs, and release the squeeze.  That sucks the drugs up into the former pen.  Then you stab yourself in a vein and squeeze a second time.  The drugs go into your vein, and off you go.

So we file the case, and it lingers around for a while, and then eventually the inmate demands his trial.  The assigned prosecutor is out of state for the trial date, and the case gets handed to me.  More out of curiosity than anything else, I decided I wanted to go to the prison to see what was going on.  I spent a half day out there, talking to the various correctional officers and seeing the sights.  I knew that jurors tend to not care much about these prison cases.  They have to be convinced by the prosecutor that she is not wasting their time.  But their default position is “bad stuff happens in prison, so what?”  I figured that they way I could get them to care about this crime, in which no one was injured, was to point out that prison is where we try to rehabilitate a lot of drug users, and that drug users can’t get clean if their cellmates are constantly smuggling around drugs and paraphernalia.

I went to the CDCR website, which is full of useful statistics, to see if they had anything on drug use in the prison.  They did not disappoint.  It turns out they had a paper analyzing the success of their recent efforts to reduce drug use in the prison.  It turns out that the CDCR does random drug tests of inmates.  They prepared a chart to summarize the results under the heading “[d]rugs and drug use are prevalent in California prisons.”  I like the CDCR for publishing all this data, but I love them for cutting to the chase.  10% of inmates failed their random drug screen during a six-month period.  By contrast, a high school that conducted random drug testing only had 8 positive tests.  That’s 8, not 8%.  And the school district has 23,000 students.  On the other hand, its in Oklahoma.

I thought I might introduce this evidence through an expert witness.  But about 10 seconds of reading gave me a better idea.  My prison probably does drug testing.  My prison probably does drug testing after an inmate is caught with contraband.  My defendant was caught with contraband.  I should see if he has any positive tests!  Sure enough, the prison has computerized (most) of their disciplinary files.  I was able to get access to my defendant’s records.

It turns out that he had tested positive for opiates only a few days before the incident.  And only a few days after the incident.  And every single month since then.  He even tested positive seven days before the trial started.  Seven days!  It really shows you what addiction looks like.  Or how stupid he thinks we all are.  The more I think about it, the more I think it was the latter.  And he might have been right to think that the prosecutor would not coordinate with the CDCR.  After all, the case had been around for a good long while and no one had done it yet.

I brought the evidence to defense counsel the day after we had picked a jury.  He asked the court for an indicated sentence, which the court would not give.  Then the defendant pleaded no contest to all the counts and allegations anyway, even though he had no idea what he was going to get.  He gave up.  And he gave up before we had even begun to try the case.  It feels a little bit like I skunked him.  I should say, he took advantage of the mercy rule.

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