Friday, August 20, 2004

Tuesday In a Week In The Life of An APA

Maybe I need to cover more ground with fewer words? It's taking me longer to post this week than it took to live it!

Tuesday is high volume day in our courts - preliminary hearings and bench trials and formal hearings (traffic tickets) in misdemeanor court, jury trials in felony court, and pretrial hearings in juvenile court. Our courts have never quite twigged to the fact that it's not 1960 any longer. That being the last time anyone has any recollection of the courts' docketing and general conduct of business being changed. That's not quite correct. In 1960 there was no misdemeanor court, only a couple of dozen justices of the peace and the felony court. That's the last time the felony court changed anything. Misdemeanor court has had its scheduling and order of events changed so often in the past eight years, only a few of us remember how efficiently, how orderly it used to run.

Did I mention that our least favorite misdemeanor court judge is also the chief judge of the three judge court? Well, our Supreme Court appoints the chief judges for all the multi-judge lower courts. The immediate past chief judge got the appointment as a political favor eight years ago and proceeded to demonstrate why his law practice partners were so happy to see him ascend to the bench. After six years, he pretty much wore himself out and declined to be reappointed. As is pretty much traditional, when no favors are being called in, the supremes appointed the judge he recommended as his successor in the job. So, not only is our newest judge totally unqualified for the job, both by experience and temperament, now he's running a court with a (roughly) $2,000,000 annual budget with about 25 employees with four departments in two locations after spending more than 25 years in private practice with with an annual cash flow of about $200,000 and never more than 1.5 employees at any given time.

The problems may not be obvious to those of you who are not lawyers, so let me explain, briefly. The judge does not have a clue as to how a criminal defense attorney or a prosecutor, for that matter, works. Reviewing the record of the dismissal case I talked about in the Monday rant, I find the amazing statement, as the judge attempts to impose attorney fees on my office for the dismissed case - knowing full well it will be reauthorized as a felony- because he doesn't understand why the defendant should be held to his contract with the court to reimburse his appointed attorney fees when the attorney never had a chance to defend him! the illogic is stunning and is as good a demonstration of the problem as can be. Essentially, he doesn't believe the defendant received any benefit from the representation because there will be no trial on the misdemeanor charge. Really. We may very well not reauthorize the domestic violence count - a significant fact given the disabilities a DV conviction can cause - based in large part on defense counsel's maneuvering.

He is also at a loss as to how plea bargaining works. Hell, he doesn't understand probable cause or how a warrant can be issued on information and belief. Having no experience in dealing with criminal defendants as clients (or routine civil litigants, either) he has no idea of how the attorney-client relationship works in those sorts of cases. He also lacks any real idea of the value of other people's time.

For me, this means a lot of my day gets spent listening to APAs vent about silly rulings, failures to have cases bound over for trial in felony court, personal attacks on the PA and the entire staff, etc. etc. My work load has increased quite a bit over the past two years - more appeals of this judge's rulings than the other two combined. What's significant is the number of times we are successful. The usual standard of review in the typical bind over or evidence decision is abuse of discretion. In practice, what this means is it is very hard to get a ruling reversed. The decision has to be so obviously wrong that no reasonable jurist would agree with it. Before our least favorite judge began his reign of cluelessness, I'd win maybe one out of four or five of these appeals. It's now running about 50-50.

Of course, these appeals don't take as much time as responding to a full blown appeal of a jury verdict, or an interlocutory appeal to the court of appeals, but they do take some appreciable amount of my time and my secretary's time. During the summer, interns handle a lot of the research and writing of these appeals. But when they return to school and to a day or two a week schedule, the time limits imposed on these actions require my full participation.


Ken Lammers said...

Probable Cause:

Judge: "Well, Mr. Lammers, I don't know what the exact definition of probable cause is but I know it's so easy to find that I could trip over it in a pitch dark room."

The fee issue: In Virginia it works exactly as your judge seems to think it should work there. If it does not go to trial (or the Defendant wins) the government is billed. The Defendant only foots the bill if he loses or there is an accord and satisfaction.

Mister DA said...

I'd trade you judges in a New York minute. Mine wouldn't even see the humor in the comment.

As to indigent defense, I have no problem with the County paying and collecting if they can. My problem is with this judge attemption to manipulate the charging and prosecuton decision of my office by attempting to access attorney fees on a case that was dismissed to be reauthorized. I should probalby put up the whole rant where the judge seems to thing the defense attorny is getting money for nothing and the county sholdn't have to pay unless he gets to "defend" his client. Just what he's been doing the past three weeks is, apparently, a huge mystery to his honor. Also the comments about who reimburses the clerk's office for the time spent preparing the case file! OK,I may have missed something in my years in appeals, but my impression was the clerk and her deputies are all on salary, just like me. They get paid regardless of the volume of work. Same for the court officers - under this chief they have to be in the building regardless of whether court is in session or not. Regardless of whether the case is a plea or a two day jury trial.