With apologies to Ken Lammers, Jr., author of the truly excellent Crim Law weblog. Another Blogspot weblog, which I will link to as soon as I figure out how to do that. Maybe I need a new template? Well, that's half the fun. As I tell my kids, If it's not hard, how would you know you've accomplished anything? Sometimes I tell them If it's not hard, how can it be any fun? They always look at me it this really odd way, like a sprouted a spare head, or something. Anyway, I figured it out, so you should see "Crim Law" in the first line underlined or highlighted or however your browser shows hyperlinks. Anyway, enough of this drivel. The following is a typical week for me, which may be pretty boring as I am currently assigned to appeals and that's pretty much like being on the AV squad in high school. Or at least when I was in high school, many and many a year ago. In the coming weeks I'll try and give you a look at what goes on in the professional life of the trial attorneys in our various courts. But for now, you're stuck with me.
Stumble into the office, more or less on time. Fire up the trusty desktop and log in. See if the IT gremlins have bothered to let any of the pending critical updates install. Humm. Not yet. Get Outlook running and check mail -- 14 spam messages and, for a change, an actual email from a colleague in another county. Delete, delete, delete, etc. Read the real message. He's still at bit worked up over Blakely v Washington, Justice Scalia's latest attempt to do something radical (reactionary) to the criminal justice system. Flag for later response as it is now time to leave for the weekly staff meeting. Get coffee from the break room on the way.
Our staff meetings are held in the new (well, three years ago) conference room around a massive conference table which just barely has room for all the APAs on the handful of Mondays when we are all free to attend. The previous Friday the Chief Assistant or a designated senior assistant will have reviewed the felony cases authorized the previous week, setting aside any that are sufficiently odd or interesting to bring to the attention of the APAs. This is also the time for APAs to being problem files to the attention of the office as a whole. Both the elected PA and the chief assistant attend these meetings, so policy decisions can be made, if necessary. The weekend felony warrants are also reviewed, briefly. This is also the time problem authorizations are discussed.
Even though we have a designated warrant attorney for felony requests, we all get requests directed to us because of either designation by the PA (e.g. all felony drug cases are reviewed by one APA, child sexual assault cases by another, oddball computer crimes by me, political hot potatoes by the Chief, etc.) or familiarity with co-defendants or companion cases. Or, sometimes, blatant warrant shopping by a cop. That's been pretty much beaten down by the current and previous PA, but it still happens from time to time. Almost by definition these rogue requests are problem requests. If there wasn't something weird about the case, why waste time tracking down a favorite APA? This morning, the only file of interest is one of these problem warrants.
It's a criminal sexual assault request where the complaining victim is the live-in girlfriend of the suspect. That's pretty uncommon in and of itself, but it gets better. These two middle-aged folks have been living together for a few years, they have a child in common, and if common law marriage still existed in this state, they'd probably be married by now. The problem started about two months ago when the female half (as our cops like to say) woke up to discover the male half having intimate relations with her. Something she seems to have strongly disapproved of. She says she told him that was disgusting, she wouldn't ever consent to that, and not to do it again. You know what the problem is, of course.
Last week, she goes out with her girlfriends and gets a little tipsy and comes home and just drops down on her bed, fully clothed. When she wakes up, she's been undressed and she thinks something of an intimate nature happened. She goes ballistic. She calls a friend and goes to the ER and has a rape kit done. She calls the police. Now, you have to understand that if he did, in fact, have sexual relations with her while she was unconscious, he's committed a serious felony with a 15 year maximum. Even if she had never told him she did not want to participate in that kind of sexual activity. The problem, as I see it, is not did a crime occur - taking the victim's statement at face value, a crime occurred - but whether this case meets our criteria for authorization. That is, is there a reasonable likelihood of obtaining a conviction at trial? Or, put another way, can we convince a jury, beyond a reasonable doubt, that this guy should be convicted?
To my surprise, I find myself engaged with another senior assistant in a old fashioned, school yard pissing contest over whether there has been any crime at all! The problem seems to be that the victim didn't pack up and move out the first time this happened, but stayed with the suspect. The nerve of the woman, expecting her significant other to accede to her wishes in this matter! That may be a consideration in the decision to issue a warrant, but not in determining if a crime was committed. Jeez!
Once the Chief Assistant calmed everyone down, we discussed the latest stupid judge tricks by our least favorite misdemeanor court judge. A person who ascended to the bench after an expensive (total expenditures by all candidates, over $300,000, and we're not a very big county) acrimonious, just plain nasty campaign and a 25 year career specializing in domestic relations law (i.e. divorces), one of two areas of law that will never be seen in our misdemeanor court. (Juvenile law is the other.) This person was over their head the minute they swore the oath and slipped on the black dress. Now the judge has the idea that s/he can stop us from dismissing a misdemeanor and force a jury trial.
Our County's misdemeanor/first appearance court has, as of the last through audit by the State, a case break down of roughly 75% criminal-traffic and 25% civil. The civil cases are the usual mixed bag of contract, minor tort, and landlord tenant. The criminal-traffic cases cover everything from 30 day trespass to preliminary hearings on open murder cases. The bulk of the court's business being drunk driving, domestic violence, unlicensed driving, bad checks, minor drug possession/use, and minors in possession of tobacco and/or alcohol. 25 years of breaking up marriages is just the preparation you need to jump into this mix. Sure. It's been two years and the judge is just getting started on some sort of power trip. We'll file the preprinted motion for dismissal and see what happens.
Meeting over - more coffee on the way back to my office. Meet with Interns (second and third year law students) and check the progress of their appellate projects as they are fast approaching the dreaded return to school. This pretty much kills the rest of the morning.
In the afternoon it's heads down writing and research. I alternate working on a Blakely memo that is fast turning into a major article with doing the initial research for a reply brief to an appellant's brief that is setting the standard for boring and unimaginative. And killing spam as it comes in.
The end of the day finally rolls around and I depart the halls of justice for another day.