The Ice Cream Sandwich Caper

If you ever go looking for common sense in this world, do not seek it out at your local municipal court.  As a defense attorney I have mistakenly tried to find it there recently, to no avail.  I let it anger me so, every time I enter the front doors of these courts, I know I am one exclamation away from spending a weekend in jail.  The crime of contempt is the one offense that I come close to committing every week.  Speeding is the one offense that I actually do commit, daily.

I have a client that is about 46-years-old and handicapped, possessing the  mental status of about a 12-year-old.  He also happens to be one of the nicest people I know.  We will call him Joe for the benefit of this blog.  Joe, like all of us, likes an occasional ice cream sandwich.  One ice cream sandwich brought Joe into my life, this is his story.

Joe lives in an adult care facility about two miles from my law office.  He and his eighty something mother came in to hire me one sunny day.  It was then that I heard of the great ice cream caper of Fort Worth, Texas.  A crime so heinous that I must give you a warning at this time that if you are under 18 or weak of heart, please, oh please stop reading this blog and go about your business.  *******

If you are still with me, I shall proceed telling you the terrible circumstances of Joe’s crime.  It seems that Joe and a couple of his buddies like to go for walks.  They amble down the road on good weather days and hang out around local businesses and hospitals.  Joe lives in the hospital district of Fort Worth, so several hospitals and their nice, air-conditioned waiting areas are close to him.

On one particular day, Joe and his two buddies were inside a local hospital, walking through the lobby, when they noticed the snack bar.  Cups and spouts for soft drinks were out in the open for anyone to help themselves.  And beside the soft drinks was an ice cream box with a top glass slide door.  Inside you could see ice cream bars and ice cream sandwiches.  Joe and his buddies decided the ice cream looked like a good idea after their long walk.

The trio sat down and started to enjoy their treats, not noticing the hospital security guard fast approaching them.  Now, anyone of average intelligence, can figure out when talking to Joe….say after about two minutes, that he is indeed,  a special guy.  Evidently, average intelligence is not needed to get a security job at this particular, to remain nameless, hospital.

The security guard proceeded to yell at Joe and inquired if he had intended to pay for the ice cream sandwich, which was now resting comfortably at the bottom of Joe’s stomach.  Joe told the guard he did not have any money.  Joe and his buddies didn’t really think about money, or prices of items…the ice cream was out in the open, no clerk standing in front of it.  It had appeared to Joe, that it was a just a very special treat….one glass-slide door away.

Does Joe know right from wrong?  Yes.  Did Joe think about right and wrong when he took the ice cream sandwich.  No.  His buddies said let’s eat some ice cream and he did.  Did Joe have money back at the center to pay?  Yes.  Would his elderly mother had driven down to pay and pick him up?  Yes.  Would his center Director have driven down to pick up the trio and paid?  Again, yes.  Did any of these options occur to the guard?  No.

The guard issued Joe a citation for Theft Under $50.00, a  misdemeanor in Texas, and set him on his way with a criminal trespass warning.  Does Joe understand what to do with a ticket?  No.  Does Joe understand the crime of criminal trespass or a warning on same?  No.

Joe does nothing with the ticket but tuck it away in his closet.  He never tells his mother, not wanting to get into trouble.

Flash forward ONE YEAR.  The Director of the center where Joe lives tells him that one of his buddies is in the hospital.  His friend is dying and the Director tells Joe and several others to come get in the center van for a trip to the hospital to say a final goodbye to their buddy.  Joe is sad.  Joe gets in the van and never once thinks of the criminal trespass warning issued twelve months prior.  If you were to tell him about it, at that particular point, he would not know what it had to do with his friend dying.

Joe entered the hospital and was stopped by the same guard.  The guard unbelievably recognized Joe!  Joe was arrested, prior to saying his goodbye, for criminal trespass.  His mother bonded him out of jail and then they sought me out for defense counsel.

Criminal trespass is a higher misdemeanor, therefore it was prosecuted by the county district attorney’s office.  I got the Director of the center to draft a letter explaining her order to Joe to return to the hospital.  The letter also addressed his residency at the center.  The D.A. immediately dismissed the case.

The ice cream sandwich caper was TWO years ago.  Today I was in municipal court regarding the theft ticket.  The city prosecutor will not dismiss the case in the “interest of justice” even after I told her Joe’s story.  The city will not dismiss the case after reviewing the letter from the Director.  The fine on the ticket is approximately $900.00 at this point.

The Judge told me this morning she would consider dismissing the case if I got a second letter concerning a current mental evaluation, or perhaps regarding Joe’s I.Q. status.  Really?  Can’t just take my word on it as an officer of the court, ….with me willing to put my law license on the line if I am found to be lying about Joe’s story???

It seems the prosecutor talked to Dirty Harry….er, I mean, the hospital security guard. He showed up today, ready to testify in regard to the great ice cream sandwich theft.  Slow day at the office, I guess.  The guard told the prosecutor that he has another opinion about Joe, that he feels he is quite competent.  Does the hospital require an M.D. or PhD in psychology for all guard applicants??

Joe doesn’t sleep well thinking about this crime hanging over his head.  I didn’t even tell him about the court date today to spare him grief.  I cannot consider trial, as I think that would be detrimental to his health.

The only solution is to file a motion with the Court outlining my belief that my client is not competent to stand trial.  I will file it on his behalf, as an indigent client, and make the tax-payers foot the bill.

The shrink will charge about $1500.00 to evaluate Joe.  He will come back to the Court and agree with me that he is a sweet boy, not competent to aid in his own defense or stand trial.  Oh yeah, the ice cream sandwich?  89 cents.