SYMPATHY? NO. BUT PITY? YES

On Thursday morning around 9, Robert Shapiro, the lawyer, met privately
with his client, Robert Downey Jr., the actor, in a lockup at the Malibu
municipal courthouse.

"You look good," Shapiro told him. "You got some sun."

"Yeah, I got out in the field a little," Downey said.

Back in jail since June, doing time for a probation violation, Downey had
once again been transported to Malibu to stand--penitent, in an orange jail
jumpsuit--in front of Judge Lawrence Mira, who has been dealing with this
same in-and-out defendant for more than three years.

Downey is a drug addict. He's been hooked since childhood. Having broken
the law, he fits a lawbook definition of a criminal. On the other hand, he
didn't sell drugs, didn't assault anybody, did nothing after his
misdemeanor arrest on June 23, 1996, but fail to kick his own drug habit.

And fail. And fail.

He is sick. He's got it bad, as bad as it gets. "It's like I've got a
shotgun in my mouth, with my finger on the trigger," he said luridly
Thursday in open court, "and I like the taste of the gun metal."

Downey made a plea to stay in a drug program run by the Sheriff's
Department. Then he added to Mira: "I feel whatever decision you make will
be the right one."

The judge sentenced him to three years in prison.

It was a decision the actor's lawyer still couldn't fathom, a few hours
later over the phone.

"This is just inhumane," Shapiro said, "on every level."

A director once came to Kate Mantilini's restaurant in Beverly Hills to
discuss a film with Robert Downey Jr., only to find him at the bar,
shoeless, carrying a small purse with a gun protruding from it.

This is no model citizen. When originally arrested, Downey was driving a
truck down Pacific Coast Highway, speeding. He had drugs in the car and a
.357 magnum under the seat, the bullets in the glove compartment.

Sympathy is something he doesn't receive, crave or deserve. Pity wouldn't
be uncalled for, though. A care center is where

Downey belongs, not a state pen. One can understand why Mira would tire of
the actor's drug slip-ups and rehab breakouts. Just don't send the ill to
jail.

"Is there a question," the judge asked rhetorically, "that if this
defendant continues to use drugs, we're going to read his name in an
obituary? Or see his name in some story about a horrible accident. Let's
not forget why he was originally arrested."

Let's not. However, at that point Downey was a first-time offender, later
sentenced to probation as such.

His crime ever since has been his inability to get sober. He misses
sessions. He skips rehab, once climbing out a window of the Exodus Recovery
center in Marina del Rey in a tropical shirt and hospital pants.

"Robert Downey is a sick, drug addicted individual who has a disease, as
bad as it can be had," Shapiro says. "Most times he's been a model patient.
He did all the work sessions. He even did janitorial duties. But he has a
relapse now and then, which he freely admits to the judge.

"Then today we walk into court to that judge, whose feeling is: 'I promised
you jail, so I'm sending you to jail.' " To learn a lesson, perhaps?

"There's no lesson to be taught!" Shapiro replies. "Beyond trying to
warehouse all people with problems? Right now, Robert is back in the
regular County Jail, with criminals around him, the most dangerous of the
dangerous. Does he deserve THAT? I begged the judge, 'At least let him
finish the program. What harm would that do?' But he wouldn't budge.

"The judge misused his discretion." Downey, 34, will have to do at least a
year, maybe more. For being sick.

Those who admire Downey's work, including this writer--no relation--dread
seeing his downward spiral. Jodie Foster wrote to him. Sean Penn staged an
intervention, knocking down Downey's door and practically dragging him to
drug rehab.

He's been on smack, mushrooms, you name it, since Santa Monica High and
before. He admits it. Long before he made the movie "Less Than Zero," his
own life was that.

His weight once got so low, Downey said, "Not only was I at zero body fat,
I was starting to get down to zero muscle mass. Then it would have been
zero bone mass. And then what? A strong wind and . . . pixie dust."

He is almost there. And he won't get any better where he's going.