PART I

This story is a perfect illustration of a couple of things. First, is the impact that long-term incarceration and institutionalization has on a person. My client, Dale Roland, is one of those people. My interactions with Dale were always bad. He had more than a chip on his shoulder, years of incarceration for generally non-violent offenses left him without much humanity. In this story I do leave out many the private discussions that we had, and that is because those do and should remain between myself and Dale. But it was in those discussions that I was given some idea of the amount of pain and abuse he had encountered over his life. I have nothing to compare the Dale I know to what he was like as a person over three decades ago before his life in the criminal justice system began, but I can comfortably assume that he is little more than a shell of what he was.

Second, this story is about making a mistake. It’s about not listening. These are two things that I personally encountered over the course of representing Dale, and it was only after I took a minute to step back and really look at the whole picture that I could realize that.

YOU MUST TELL THE TRUTH

The Jurors were waiting for me. They looked to me with anticipation, and what appeared to be a little boredom. I was the last to speak. By this time, they had answered the judges questions, stated their name, career, their spouse’s name and career, whether they had any children, and how many. They had answered the questions from the prosecutor, and nodded in agreement with him each time he asked them to swear to uphold the law in certain instances. For the last two hours, they had pledged their allegiance to a whole host of things, chief among them that they would be “good little jurors”.

I would be a little tired, too. However, most of them continued to sit attentively in an acceptable posture, a few did melt a little into their seats, as if gravity had slowly pulled them down over the time. As I walked to the podium I felt all their eyes. They were watching me walk. Maybe some of them thought I had a strange appearance. Was I what they expected? I doubted it. I wonder if that intrigued them or if it just was. Courtrooms never feel right. They are like church only without the idea that something good is going to happen in the end. Sure, the whole thing might start off with how you’re going to hell, but by the end of the service there’s redemption. There wasn’t going to be any redemption here.

“My name is Brecken Wagner and I am the attorney for Dale Roland. The gentleman seated there at the table next to my associate is Mr. Roland. Ladies and Gentlemen, I’m going to share with you something that I think you should know. I can’t stand Mr. Roland, and he doesn’t like me. Isn’t that right, Dale?”

“Yep.”, came a growl from the bearded man at the defense table.

“As a matter of fact, the last time we were in court together he said some awful things to me and I said some pretty awful things back to him. I just can’t think of anything nice I can say about him at all, and I don’t like him even a little bit. How do you feel about hearing me say that?”

HOW DID WE GET HERE?

The Christian faith teaches that you should love you neighbor as yourself. Sounds like a pretty straight forward principle. John Lennon said, “Love is all we need.” Loving everyone is hard, I’ll be the first to admit that, but it doesn’t seem impossible. Luckily neither Jesus or the Beatles said we must like everyone, now that would have been impossible.

In August of 2016 I was assigned the case of Dale Robert Roland. He was charged with one case which included Possession of a Controlled Dangerous Substance, and Violation of a Protective Order (the protective order was granted against Dale at the request of his own mother). The second case he had was for Intimidation of a Witness (the alleged victim was his brother-in-law). I was assigned as indigent counsel, pursuant to a contract that I had with the Oklahoma Indigent Defense System. I was Dale’s second attorney.

His first attorney had been allowed to withdraw from his case when, Dale threatened him after a preliminary hearing. This also happened to be the same preliminary hearing in which he was accused of intimidating a witness and charged with another crime. According to the officer that was present in the room, Mr. Roland made a throat slashing motion when his brother-in-law was leaving the stand after testifying for the prosecution. The hearing was stopped and Dale was forcibly removed from the courtroom.

Dale is shorter than me probably not much taller than 5’ 6, he wore a scraggly grey beard stained with shoots of brown whiskers, and long unkept greying brown hair. He had several tattoos made of thick green faded lines and common jailhouse artistic quality. His eyes bulge slightly and remained transfixed on a faraway something at all times. He speaks in quick static sentences. He incorrectly uses words that he doesn’t seem to know the definition of, but he does it in a way that is indicative of a prison dialect. Which makes sense considering that Dale has spent the majority of his now fifty or so years on this earth in prison. He talks of conspiracies and biblical prophecies, he has been isolated, and marginalized his entire life.

Dale is not kind. He is not considerate. He is not polite. He is not humorous. He is handsome. He is not clean. He is animalistic.

I reviewed his case and received the state’s offer. For having a very small amount of marijuana the prosecution wanted Dale to do fifteen years in the penitentiary, however they were willing to also allow him to plea to the witness intimidation case for fifteen years as well and run the sentences together. Helluva deal. I wasn’t shocked when Dale responded to me with a series of expletives when I conveyed their offer to him.

The preliminary hearing for the Witness Intimidation case took place before Judge Michael Hogan in a small courtroom in the Leflore County Courthouse. The well of the courtroom was so small that only a couple of feet of space existed between the two counsel tables. Judge Hogan called the case and the state called its first witness, Michael Permenter, Dale’s brother-in-law to the stand.

Mr. Permenter recounted how he had done his civic duty by taking the stand against Dale. He spoke of how bad of a person Dale was and how upset he was when Dale made that gesture to him as he completed his testimony that day. He recounted how upsetting the whole matter was and how he feared for his life if Dale were ever released from custody.

On cross-examination Mr. Permenter acknowledged that he made a statement and advanced toward Dale after the gesture was made, then he removed from the courtroom by a deputy. We explored their relationship to some extent and Mr. Permenter did make it clear that he did not like Dale at all, and his testimony that day may have been just as enjoyable as dutiful. But one thing he did say and the other two witnesses would also recount was that Dale was wearing handcuffs, shackles, and a belly chain on the day that this occurred.

I was so interested by this observation that when the two officers that would testify that they had witnessed my client make this gesture testified, I asked them in detail how Dale was restrained in court that day. Both officers testified that in fact Dale was chained and shackled. While cross-examining the last witness I pointed out that Dale was chained and shackled at that moment.

“Officer, would you please look at Mr. Roland. Would you agree with me that he is chained and shackled in a manner that would be the same or similar way he was on the day of this incident?”

“Yes, sir. He is sir.”

At this point I had Dale stand. Again, the officer acknowledged that he was indeed shackled and chained in the same manner. I asked Dale to sit, and with the officer’s direction in a similar way in which he was sitting on that day. When the officer was satisfied, I turned to Dale and said, “Ok Dale, make the throat slashing gesture.”

Dale struggled to pull the chain around his belly up high enough and then force his handcuffed wrists closer to his throat. In a struggling and strained motion, he ran a finger across the upper portion of his chest, this was the maximum distance the chains would allow him to raise his hands. All the testimony up to that point had created a picture in the mind of any finder of fact that Dale had quickly and expertly performed this threatening hand gesture without the slightest difficulty and a smooth and even pursuit across his neck just below his scraggled beard. I smiled the smile of the cat that had just ate the canary, I’d done my job and I was sure that the prosecutor would have to agree with me that this case could not go on to trial with such flimsy evidence.

I argued to the judge that the state hadn’t even shown enough evidence that this matter should go on to trial. The burden for the state at preliminary hearing is very low and I wasn’t surprised when the judge overruled my request to dismiss the case and instead said that the state had met the very low burden necessary to go on to trial, if they really wanted to.

I saw Dale a few more times after that at court, but I only spent enough time with him to let him know that his case was progressing. I didn’t ever really take the time and talk to him about his case. I just kept thinking the state would offer him something like “time served” and that would be the end of it. But, that never happened, and the next thing I knew we were on the eve of trial.

I remember arguing with Kevin Merritt, the Assistant District Attorney, that I could not believe he wanted to actually try this case. I appealed to him to reconsider. I argued that at this point Dale had been in custody for nearly two years, and that the right thing to do would be to just allow him to plea to a misdemeanor “Threatening to Perform and Act of Violence” and time served. Kevin insisted that Dale enter a plea to fifteen years in prison, something I knew he would never accept.

Frustrated, I crossed the courtroom and motioned for Dale to follow me into the hallway to talk. I was thinking to myself, if he (the Assistant District Attorney) wants a trial, by god I’ll give him one. I was gonna win just to show him. Now I just had to tell my client what we were going to do.

IT ALL GOES BAD…VERY BAD

In the hall, I explained to Dale that we were going to trial. I told him exactly what I was feeling, that if the state wanted to have this trial we were going to show them. I was doing all the talking. On the occasions that Dale started to interrupt me I would raise my hand to silence him and kept talking. At one point, I stopped and pulled out my phone. I told him to hold up his shackles so I could take a picture. I intended to document exactly how he was shackled that day so that I could recreate it at trial, always suspicious that the prosecution might try to pull a fast one and loosen his chains for the big show, I wanted to make sure Dale was shackled the same way, and could therefore prove he couldn’t have done what they said he did in the manner they say he did it.

The pause allowed Dale the chance to get a word in edge wise, and he took full advantage. He started telling me how he was not handcuffed that day, because he had an arm injury, his arm was in a sling and he had full motion of it. He began complaining that everybody was lying, and I wouldn’t listen to him. He called me stupid and said he wanted a real lawyer. I tried to stop him, but before I could he had already opened the door to the courtroom.

“Judge!”, he yelled from the open doorway. “I want a different lawyer, this one isn’t no good. I keep telling him that I wasn’t in no handcuffs at my hearing and I could move my arm anywhere I wanted, but he don’t want to listen to me. I’m not lying to anybody, that’s what everybody else wants to do, and I didn’t have no handcuffs on.”

I was paralyzed. All the color drained from my face. I had a defense. I had a chance to win and now my client was shouting across the courtroom that it was all wrong, a courtroom full of other inmates, people in the gallery, other attorneys, and all of the assistant district attorneys. They all stared, transfixed as Dale proclaimed that I was bad attorney, a fraud, and that he could have definitely did what they accused him of. I didn’t think it could get worse and then he said…

“And as for that marijuana. The guy that gave it to me said it was medicinal marijuana and it wouldn’t test positive for real marijuana, but this attorney won’t do nothing about it.”

Yep, that’s right Dale didn’t just destroy one defense, but he went ahead and admitted guilt to second while he was at it. At some point, it felt as though all those eyes that were transfixed on Dale began to shift their focus to me. I wanted to run.

Judge Marion Fry spoke, “Ok Mr. Roland, why don’t you just have a seat and we will discuss all of that in a moment.”

I sheepishly crossed the courtroom and made my way to the bench. The Judge leaned toward me, looking down on me from stand, the highest point in the courtroom, and softly spoke, “I’m going to give Mr. Roland a little bit of time to calm down before we take up those motions.”

I responded, “I hope that helps judge.” The stares were still there, I could feel them as they bore into my back. I had almost forgotten the actual reason we were there for court that day. I had filed some trial motions and requested a hearing on them. I walked over to my seat and slumped down. The other attorneys in the room resumed their business in a show of solidarity that they had not witnessed what had just happened. I felt like weird kid in school that no one wants to sit with at lunch.

IT GOT WORSE…SERIOUSLY IT GOT WORSE

Judge called the case to order, the courtroom still full of attorneys and prosecutors, some of whom I know had already completed their business, and others that had not. I approached the bench and Dale joined me and stood slightly behind me to my right.

“Ok Mr. Roland, you said you wanted to tell me some things?”

“Sh@!”, I thought to myself, “I have a feeling this isn’t going to disappoint the audience.”

“Yeah judge, it’s about this whole thing and this lawyer here. I want a new lawyer or I want to just represent myself, I can do a lot better than this guy.” With that introduction Dale began to again repeat all the reasons that he could have definitely made that throat slashing motion and that he wasn’t handcuffed at all on the day that this happened. As Dale wound through this again and began to approach the part about having “medical marijuana” I jumped in.

“Judge, we are not here on Mr. Roland’s possession case and the court shouldn’t hear anything he has to say about it, I’m asking the court to order him to stop.”

“Yes, Mr. Roland that’s enough. Mr. Wagner is right the court cannot hear anything about that case today. And as to your request for new counsel, or to represent yourself that will be denied. Mr. Wagner is going to remain as your attorney for trial and we are going to move on to these motions.”

Dale didn’t say another word. He just stood quietly as Mr. Merritt and I began to argue about some trial motions. I finished my argument, and Mr. Merritt was responding. As he was speaking I could feel Dale inching closer and closer to me. I was agitated, embarrassed, and just angry. When I felt Dale bump into my shoulder I turned, and without even thinking said, “Dale, just don’t touch me.”

“F%#k you”, Dale responded.

“Hey!” Judge Fry snapped.

“Well judge this is bulls@*t. This guy he ain’t no good, I don’t have to take this.”

“Mr. Roland I’ve had enough and I’m telling you to be quiet. If you speak again I’m going to hold you in contempt.”

“What’s that mean? What, you’re gonna throw me in jail?”

“Yes Mr. Roland, I will.”

“This is all bulls@&t!”

“That’s it. I’m finding you in contempt.”

“Well f@#k you!”

“Deputy, get him out of here!”

As the deputies raced to where Dale was he kept screaming expletives at the judge, me and everyone else in the room. At one point Dale he said, “If I have to sit next to this guy [me] at trial, then I’m gonna get life, but not for this case.” Two deputies interlaced their arms in his and began to pull him away. He refused to cooperate and they began to drag him across the floor as he screamed his dissatisfaction. With a “bang”, Dale and the deputies crashed into the door, it swung open, and as he was being drug through he shouted, “Hey Judge, you can s&%k my f@!$ing d&#k!”

I turned back to look at the judge, we all did. He simply turned to Mr. Merritt and said, “You may continue.”

We finished the motion hearing and I was even successful in prevailing on one of them. One of the motions that the state was successful on was to have the ability to call a jailer to testify as to the way the shackles are applied to a prisoner and the range of movement a prisoner has when shackled. I figured after all of that the state would just do away with this witness and what testimony he could provide, given that my client had just denounced that defense to a courtroom full of people. However, to my surprise they appeared to want to move forward.

I left the courthouse, and dejected, I turned my truck toward McAlester and began the journey home. For the next hour or so I was left with my thoughts. I ran through a full course of emotions, chief among them anger and frustration. I wondered aloud to myself, “Can I just get out of this thing?”