Thursday, September 23, 2004

Once More, Into The Breach Dear Friends

Day Two In Wonderland

So, here I am, back in the land that law forgot, for the second day running. Today’s case is a felony drunk driving were the defendant managed to get charged with two counts, which just seems to have irritated retained appellate counsel beyond all reason.
The argument on appeal is that it is not fair that the witnesses, friends and neighbors of the defendant, fingered him for the sheriff’s deputy who investigated his one car rollover accident. That it’s not fair that the police information network was able to tell the deputy where he lived, according to his drivers’ licence information. That it’s not fair that the same police information network was able to provide the deputy with the dates of his several previous drunk driving convictions so the deputy was aware that he was investigating a felony. And that it is really, really not fair that the deputy, less than 30 minutes after arriving on the scene, having found and identified the vehicle the defendant had been observed driving away from the scene of the accident, in the driveway of the address on his drivers’ license, and having knocked on the door and then asking his mother if he was at home, and having been told he was, could enter the house and make an arrest after the defendant had taken the trouble to get into bed and pull the covers up over his head. (Apparently I’m going for the Leo Tolstoy sentence length award here.)

So, two counts? After he flipped his own car (mind you, this was in the middle of the afternoon) in front of three or four witnesses, two of whom knew him personally, the defendant called a relative to come get him. Relative came and was walking up and down the side of the road with the defendant, trying to get him to calm down. At this point, the defendant sees the approaching emergency flashers of a volunteer firefighter/EMT and thinks the cops are after him. Well, they were, but not for another ten minutes.
Realizing that he is going to be in deep trouble (not only is he drunk, his license is revoked for the previous set of drunk driving convictions) he decides to make a quick getaway - in his relative’s car. When the relative realizes what is going on, he wisely declines to either ride shotgun or attempt to subdue his bigger, younger, drunker relative, opting to wait for the authorities. The defendant drives off in front of even more witnesses who know him, including the just arrived chief of the local volunteer fire department. Thus, once the defendant is hunted down and a blood alcohol analysis shows he’s, oh, twice the old limit (almost three times the new limit) two, count ‘em two drunk driving charges.

This was a three or four day jury trial. The defendant retained some out of town hot shot who papered the trial court with motions seeking to suppress everything but the color of the arresting officer’s eyes. Some of them even had merit. Eventually, the thing went to trial and the jury convicted on both counts in about 15 minutes.
Anyway, like I said, some of the arguments made by trial counsel had merit and the appellate attorney, also retained, parroted them. I think I’ve covered the law and the real facts fairly well, but my confidence is just a tiny bit shaken by the caviler attitude this panel displayed yesterday. At least today opposing counsel blew the deadline for preserving argument and hasn’t moved for special argument.

Once again I am the first case with anyone endorsed for argument. After the PJ makes his introductory remarks (identical to yesterday’s, as close as I can tell) I head up to the lectern and start my pitch. "May it please the court, . . ." at which point the PJ interrupts and says "Good to see you again, Mister DA. I just wanted to let you know we really appreciated your argument yesterday, it was very helpful. Now, is there anything special we should know about this case?"

OK, obviously, there is some sort of space/time warp on the expressway between my county and the big city! Right! Thanks to extensive training by the United States Army in the days of my misspent youth, I have a finely honed sense of when to quit while I’m ahead. "No, Your Honor, I think I’ve covered everything in my brief, so, unless there are any questions, I’ll let the court get on to the rest of the docket." No questions (thank God!) and I’m on my way to the parking lot. Some days you eat the bear, some days the bear eats you.

We don’t have opinions in either case, yet. I expect them this week or early next week. Any bets on which way they come out?

Sunday, September 19, 2004

Ignore The Agenda Behind the Curtain

Sometimes It's Hard To Tell If You're In Oz Or Through The Looking Glass

One of the most pleasant parts of going to the in between court, for long-term appellate practitioners, are the court officers. Blazer clad, retired state and city cops to a man (I think there are one or two women in the capital, but I don't know for sure, because I haven't been there in a couple of years) they run the screening point and perform the traditional court crier/bailiff duties in the courtrooms. The same guys have been working this particular office since I started coming down on a regular basis, about 12 years ago. Seeing as I'm down here once or twice a month, 10 or eleven months out of the year, it makes for an odd kind of serial acquaintance. The nice thing about being friendly with the court staff is you sometimes get a heads up that can save you a lot of trouble. Tuesday, for example.

Because I try to be in the courtroom well before the appointed time, I usually have half an hour or so to kill. Unlike some of my brothers and sisters who I see around the court, I do all my preparation the night before. I'm too keyed up the day of oral argument to wade through the briefs again, even the scintillating gems of legal reasoning I produce. So I chat up the court officer assigned to the bailiff station in the courtroom.

Like I said, these are the same four or five guys I'm been seeing for the last 12 years, so, while we may not be too clear on each other's names from time to time, we remember the broad stroke stuff - who retired from the city PD, who bought military time and retired early from the staties, who's a football fan, that sort of stuff. Today, we're talking about, of all things, how the judges react to the wildly varying styles of the attorneys who appeal in this court. How we got on this topic, I'm not sure. Something about working indoors on really great days led to being able to get away from the bosses every now and then, to the kind of bosses we had worked for, to the judges as bosses rather than judges.

Currently, I think six Judges have their primary offices in this particular state building. Those of the six the court officers are really concerned with keeping happy. But, because of the panel rotation, all the judges spend time in all the courtrooms/state buildings. So the court officers, over time, get to know all the judges in the same why the know me. Only a little better because the judges visit in two week blocks. So, anyway, we're chatting about the judges and how they are to work for, when I ask how this panel, which is in its second week, is doing. And receive a bit of information that really helped me in my argument. Actually, it may have kept me from alienating the whole panel.

According to the bailiff, this panel has had a hard time with a bunch of parental termination cases that it set on for oral argument. Which is interesting in itself. Most termination cases are put on the no-argument docket, more or less automatically. So, even though I was the only termination case on for today, the panel had heard a number of them last week. There appears to be a rumor that because of some problems with the assigned counsel system for termination cases in a couple of our larger counties, the Chief Justice has informally told the Chief Judge of the intermediate court to take a closer look at some of the termination cases, including getting the parties into court for oral argument if there is anything like an ineffective assistance of counsel claim being made on appeal. A light goes on. Now I have a good idea why this case is on the argument calendar. The bailiff goes on to tell me that last week's call had several termination cases, but none of the parties had preserved oral argument by either a timely filing or by motion.

This is one of my boss's hot buttons, probably because he was the Chief of Appeals for many years, before becoming the elected PA. Our goal is to always preserve argument by either a timely filing or by a motion for argument. In this case, opposing counsel prepared a cut and paste brief with an incomprehensible statement of facts, but, as an after thought, accused the trial attorney of not discovering an alleged fact that defense counsel on the separate criminal charges claimed to have discovered. He was well within the time limit for preserving oral argument. We, as a matter of routine, were also timely. So, here I was, with the first case before the panel with argument preserved on both sides, after the Chief Justice has indicated a little more examination of these matters was in order. Lovely. Maybe I should be rereading those briefs.

We are the first case on the call. After the presiding judge tells the crowed the usual "we've read your briefs, don't read them to us; go for your best points or any new authority, etc, etc" we move to our respective tables before the bar and worthy opposing counsel, representing the Respondent-Appellant mother, gives his pitch to the panel. This is not the same attorney who filed the original brief in the matter. The trial attorney from the separate criminal trial who has been retained by the family to prosecute the appeal. He essentially recaps the two briefs and attempts to expand the record by brining in the police reports and testimony from the criminal trial. For those of you who are not appellate attorneys, this is highly improper. The appellate court is supposed to review the record that the lower court relied on in making its decision. One blindingly obvious problem is that the defense called different witnesses at the criminal trial because the witnesses used in the termination proceeding were locked into their testimony and couldn't, conveniently, change that testimony to answer the issues raised by the family court judge in his opinion and order.

It seems clear now, although we were more than a little puzzled at the time, that counsel's goal at the criminal trial was two-fold, to get an acquittal if possible, but to also lay the ground work to have arguments on appeal to refute the family court's opinion. Wonderful. It shouldn't have worked. But this particular panel of judges seems to have swallowed it, hook, line, and sinker! The only, highly improper, question they ask is what was the result of the criminal trial. You see why this was improper, don't you? First, the burden of proof at a criminal trial is beyond a reasonable doubt, not clear evidence as it is in a termination case. Second, the criminal case was held months after the termination hearing. The family court judge had no way of knowing the result, nor even if we would continue the case once he terminated mom's parental rights. The fact that a jury acquitted her on the child endangerment charges has no bearing on the family court's decision. None.

So now, it's my turn. I tell them that I am surprised they would entertain the unauthorized expansion of the record and am about to actually make an oral motion to strike the offending material when the PJ interrupts me and asks if I don't think, given the gravity of the issue, that they should consider all the evidence. I have to admit, I was left speechless for several seconds. Then I remembered that all three of these judges were former felony court judges, in counties with separate family courts. Not a one of them had ever sit as a judge in a termination case, nor likely participated in one as an attorney -- it is, after all, a very specialized field in our bigger counties. Wonderful, again.

After I regain the power of speech, I attempt to make my theory of appellate review clear, without saying what I really feel, remembering the bailiff's tip that this panel has been having a frustrating time with termination cases this month, and not wanting to provoke a contempt citation. I don't recall being able to get more than a dozen words out an any point without being interrupted by one of the three with a questions or a sarcastic comment.

One of the judges asks about some fact that was alleged in the criminal case. I point out that the only problem was that the Respondent and her witnesses testified to just the opposite of this fact at the termination trial. But didn't the jury at the criminal trial rely on this fact to acquit. I throw up my hands. How do I know what the jury relied on? The record before the trial court, that is, the family court, was x, y, and z. After seeing what a poor result that had in the termination trial, counsel produced new witnesses to testify to a, b, and c at the criminal trial. Whoa! Dead silence from the bench as they digest the implications of that. We go on to a different issue.

The PJ asks about how long DSS worked with mom before bringing the petition to terminate. Several months longer than the statute requires, I tell him. Well, how long is that? Thirty months, I tell him. Does that seem like a reasonable time to me? He misses the point, and exposes his own ignorance of the law, and his law clerk's, too, for that matter - under the massive revision to our child welfare laws in the late 1990s, DSS has far less leeway than they used to in dragging abuse and neglect cases out for years and years and years. If they haven't reunited the parent(s) and the child(ren) within 24 months of the initial court hearing taking temporary custody, they have to bring the petition and let the family court decided if they get more time. In this case they received one extension from the hearing officer. When they took the matter to the family court judge for review, in addition to finding the extension not justified on the record, he explicitly found that even considering what had taken place during the extension, there was no reasonable likelihood of putting the family back together. We go back and forth on my opinion of this, that, and the other thing, for awhile. I mean, things that have been decided by the legislature after literally year of commissions, reports, studies, hearings, and debate. I begin to wonder if somewhere on the drive down I haven't sipped through a wormhole to an alternate reality where the massive reforms of the 1990s never took place.

The crowning bit of surreality comes when one of the other judges asks me, in all seriousness, if I don't think a baby (the child in question was less than a year old at the time of the termination) belongs with its mother, rather than with strangers in foster care? I mean, how do you answer that question? Of course I think babies belong with their mothers, unless, of course, mom's conduct seems to be aimed at killing the baby - what we alleged at both trials, and proved to the termination standard in the family court.

At this point, wonder of wonders, my 30 minutes were up. Thank God. Opposing counsel didn't bother with rebuttal, his black robed co-counsel having already taken care of that.

This is probably the worst manhandling I have ever had by an appellate court. I've argues before out federal circuit, our state supreme court, and, I think, every judge currently on the intermediate court, and I can't ever recall the law being so completely ignored and the appellant being allowed to pretty much change history. Maybe this happens in civil cases, but I've had to sit though a fair number of them, now that we don't have pure criminal dockets anymore, and I don't think so.

On the drive back to the office, one though keeps running through my mind. I've got this same panel tomorrow on a felony drunk driving case. Wonderful!

Wednesday, September 15, 2004

Off To The Emerald City

But The Wizard Seems To Be Out

Well, this has been a great week, so far. Sick on Monday, but that's another story. Today and yesterday were visits to the big city to do oral argument in our intermediate appellate court. Same panel of judges, one case on each day. You'd think they'd find someway to try and match attorneys to cases so we aren't hit with this sort of thing. Ah, well, I've had the other problem, too. That is, two panels running and I've got cases on same call in both of them. Happily, the courtrooms are only about 50 yards apart and the court officers, all retired cops, are very helpful in getting you from one to the other, and keeping the judges calm.

Anyway, it's not all that uncommon to have argument on two different days. The court sets arguments on the first and second Tuesday and Wednesday of the month with two calls each day. The first starting a 9:00 a.m. and the second nominally at noon. That one really begins after the panel takes its morning break, usually 20 minutes or so between 11:30 and 12:30, depending on how verbose the parties in the first call have been. In theory, each endorsed for argument party gets half an hour if there are only two parties, less time the more co-/cross/third-parties there are. If only one side has argument, they get 15 minutes.

Because of the shear size of this Midwestern wilderness, we have several divisions of our intermediate appellate court. While they may not pay much attention to what they've done to you on the actual day of your call, they do keep you close to home, if they can. I never argue in the courtrooms that are actually for the district my county is in -- to far away. Easily twice as far in time, even more in distance, than the state building in the big city. So, a couple of days a month I get out of the office for a little field trip to a real downtown in a real metro area.

Did I mention my law school is within nice day walking distance of the court? Well, it is. And how big an appeals geek am I? Well, sometimes, when there is nothing pressing back at the office, I'll spend a hour or two at the law library. It's amazing what you can find in the collections of a major law library. Ever hear of "The Green Bag"? My alma mater has an almost complete run of the original magazine, bound in yearly volumes. A window into the practice and live of the law from the 1890s to the 19-teens. I discovered them one rainy day in first year while on one of those sadistic treasure hunts legal research and writing instructors are so fond of. It made the silly TH worthwhile.

Anyway, two cases this week, one on each day of the call. Tuesday's was a termination of parental rights appeal. Which was a little odd. Those are almost always decided by summery panels because there is almost nothing to argue about. Of course, there is, in the abstract. But it's always the same. The judge committed clear error when he found one of the statutory grounds for termination. If the judge was correct on the grounds, then the judge committed clear error in finding that the best interests of the child required termination. So why did this one draw a oral argument shot?

Going into the argument, all I could think of was that, procedurally, the case was a little unusual in that it was initially heard by a family court hearing officer who had denied the DSS petition to terminate. Our assigned APA had requested a de novo review by the judge assigned to juvenile cases. Some what unexpectedly, he won and the judge ordered mom's rights terminated.

More tomorrow. I'm going to get this posted so you all don't think I've died, or something.

Sunday, September 12, 2004

Mister DA Kicks Back - Part II

Now something that just irritates me. Not a lot, but more than I like. And that's

The Bush Memos

When I first read about these in my local papers and on the web, the day after the 60 Minutes II report, I didn't think much about it, one way or the other. You see, I'm a veteran of the Army Reserve of about the same era, and the one thing I know for a fact is that neither Dan Rather, nor Terry McAuliffe, nor any of the other reporters or politicos working this story, at least the couple of dozen that I have seen or heard, have the faintest idea how the Guard and Reserve work today let alone thirty to thirty-five years ago. Clueless, each and every one of them. Nor do they have much idea how the active military works. So, non-story to me.

Then the hoo-rah about the provenance and the authenticity of the memos begin to intrude on a number of news sites and weblogs I monitor. So, I cast around and found the .pdf files of a couple of the memos. Well, heck, didn't look like any military memo I ever saw. Let me explain bit about that.

I was commissioned from ROTC in June of 1971 and entered active duty in March of 1972. I was a combat arms officer and that delay in my initial entry should give you some idea of what a glut on the market combat arms lieutenants were at that time. It got worse, from my point of view. About half way through my branch basic, my orders were changed from a two year active duty (AD) tour to a 90 day active duty for training (ADT) assignment. That sucked, for a number of reasons.

First off, I really wanted to do the full two years and maybe more. I was so gung-ho, 22 years old, invincible and sure I was going to be the next Omar Bradley or George Patton, that I'm not sure who that guy was. Second, on a more practical level, because I had expected to do at least two years AD, I had no real civilian career plans. Third, because I wasn't going to do a full AD tour, my active reserve obligation was something like six years. And by active reserve I mean monthly drills and two-week annual training for six years! And trust me, we (the couple of dozen of us in the class that got hit with this) knew damn well that there were many, many officer vacancies at the O-1 to O-3 level in the active Army Reserve. In those days the rule was something like you could be required to drill some insane distance from your home - I don't recall exactly, but something like 50 to 100 miles comes to mind. Anyway, I lived in a major metro area that, according to the counselor they had explaining all this to us, was crawling with Army Reserve and Army National Guard units, all eager to welcome us with open arms.

Anyway, to make an incredibly long post as short as I can, I mustered out and found a unit. I also found my degree field, Communications Arts, was flooded with people with more experience, willing to work cheap. So I ended up taking a civilian technician job with a reserve unit about 50 miles from home. Unlike the National Guard, the Army Reserve didn't link military grade with civilian grade. I was a GS-07 Administrative and Supply Technician-Recruiter.

In the unit I worked for, I was the de facto Battalion S-1(Adjutant, that is, the chief paper pusher) although nominally assigned to a company as a Platoon Leader. During the week, I kept the paper work flowing, during drills I supervised the training and work product of the battalion and company clerks. I gained an intimate familiarity with the mixed bag of manual Royal, Smith-Corona, Underwood, and electric IBMs we used. Trust me on this. There was no money to spend on fancy cold typesetting IBM Composers. For that matter, I don't think the unit ever got a Selectric, ball type machine until sometime in the early 80s.

For the first several years I was in the unit, we cut the annual training orders on mimeograph stencils and sent them to brigade to be run off. We typed letters, memos, individual orders, you name it, on manual typewriters (we had one electric per battalion, mostly to cut the mimeographs stencils) using white and yellow manifold paper for copies. The other thing I distinctly remember, and I can't say whether the Air Force and Air Guard were the same way or not, was the paper was smaller than regular letter size in the civilian world. I seem to recall the letterhead size being 8" x 10.5" that is, half an inch smaller the the civilian standard. Some genius of procurement no doubt calculated just how much this would save in paper costs.

When I looked at the pdf files of the alleged memos, I had a hard time believing this wasn't a joke. During my 12 years with the active reserve, four of them as a full time employee, I handled hundreds of these sorts of things. I created hundreds for the battalion staff, my fellow company commanders, and myself to sign and put in personnel files or send up or down the chain-of-command. These things don't look right and the over all feel, as much as a .pdf on the screen lets you feel anything, is wrong. Enough.

The thing that irritates me is no one seems to have thought to find someone like me from the Texas ANG of that era. If someone produced a supposed memo or order from my brigade, I would think, from a forensic standpoint, that someone much like me would be the person you'd want to talk to, at least to begin with.

OK. So that's how my weekend went. A little trip down memory lane. I hadn't thought about those days for a long time. Now I'm going to go down and watch episode 5 of Alias, season 3. Later.

Mister DA Kicks Back


And it's going up on Sunday, too!

Spent yesterday decompressing from the week, more or less. Unless I'm the on-call APA, I try to avoid going into the office on Saturday or Sunday. Not always as easy as it might seem. My job has a pretty steady flow of things-to-be-done that have immutable deadlines. My brothers and sisters on the trial staff, of course, have deadlines, too. But by and large, our trial courts (well, except that one) are flexible on things like responsive motions. So, for that matter, is the local defense bar. Sort of a "we're all trial geeks here, together" attitude. The various courts of appeal are not. Even when the felony court sits as an appellate court to the misdemeanor court, the court rule deadlines are the deadlines, like it or lump it. Which is a long winded way of saying, once the swarm of interns return to law school, I either spend a couple of evenings at the office or a day or two on the weekend. We really need another APA doing appeals, at least part time, but the county board is looking to cut 4+ million from the 2005 budget, so we're doing well to stay where we are, in fiscal terms, without drawing attention by asking for more bodies.

So, what did I do yesterday? Well, as number two son had a football game Friday night, I had to tape my Friday night required viewing. By the time I got the video camera back to my ex, set up it up to view the footage of our pride and joy in his first appearance of the season, and got myself home, it was too late to watch what I'd recorded. Not if I wanted to avoid the dread slept-three-hours-in-the-recliner neck/back. So I worked the online class I teach for a bit and went to bed.

Saturday, after the usual make and mend session with the vacuum cleaner and the scrubbing bubbles, I made a bowl of popcorn and watched my shows. (God, I'm channeling my grandmother! My shows, like I've got a couple of points or something.) So what constitutes must see TV for a hard-core prosecutor on a Friday night/Saturday morning?

For now, well, until next week when the "summer finales" run, it's Stargate: SG-1 and Stargate Atlantis. Yeah, SF geek here, reporting for duty. I "discovered" Stargate: SG-1 by accident. I'd seen the movie, with Kurt Russell, and thought, good concept, mediocre execution. Then, oh, sometime in late '02 or early '03, in the winter, anyway, I came across the first season of the Showtime 'SG-1 on DVD for something like $10. So, $10 is pocket change, right? And I was bored out of my mind so. . . I was hooked. Happy days, indeed. Seeing as seasons 2, 3, and 4 were already on DVD, and season 5 was due out, real soon, and season 6 was underway on the SciFi channel, I almost ODd on Amanda Tapping -- I mean Stargate. Right, Richard Dean Anderson, Chris Judge, Michael Shanks, and how about that Don S. Davis!? Can that guy play a general or what? Anyway, that's my Fridays, except for high school football season.

Once the new seasons get rolling, things will get interesting. Let's see - got the VCR, got the ATI All-In-Wonder capture card on the computer and the cable drop for the broadband conveniently close to hand -- humm - Joan of Arcadia, Enterprise, Stargate (two), and whatever the WB comes up with for its Friday lineup. Rats, looks like I may have to buy that Tivo after all. Well, it's only money.

Toward the late afternoon, I managed to drag myself to the store for provisions, then made a Best Buy run to check out the new DVDs. I am a DVD junkie. TV shows, in particular. I admit it, and I think I have it under control, now. I limit myself to two movies or one TV set per payday. Yesterday I picked up Alias, Season 3. And that's what I've been doing today. Well, that and doing the weekly grades for my online students. It's my own carrot and stick approach. I do one grading chore, I get to watch one episode.

I've just finished the bulk of the grading chores, and thought I'd ramble on here, a bit. Some other things, not really work related except in the most tenuous way, that I've been thinking about:

The Kobe Bryant Case

Only because a number of my students, knowing what I do for a living, asked how the heck can this happen. All of you reading this who are in the biz, regardless of side, know the answer, more or less. I don't make it a habit of second guessing prosecutors in other counties, let alone other states, but the court out there. . . I've heard at least one of our judges refer to it as Keystone Kourt, a phrase that was picked up by a number of the APAs. You know, we get lawyers from the "big city" who come here and act like they expect to find Pa Kettle on the bench and Li'l Abner running the prosecutor's office. Indeed, one of my favorite judges, now retired, once inquired of a particularly obnoxious specimen "Counsel, where do you think you are, Dogpatch? It doesn't matter. Here in my court we use the same rules of evidence as the rest of the State. I assume they use them in your county, too." Much innocent fun can be had with these guys. But, gee willikers, how many times did that court manage to leak information? Dahlia Lithwick over at Slate has what strikes me as the best summary of what she calls "an epic debacle" that I've come across. Of particular interest is her commentary on the district judge.

Was it all District Judge Terry Ruckriegle's fault, then, for allowing his staff to leak—on four separate occasions—humiliating details as well as the name of an accuser who had already endured a year of abuse and death threats? No. His was a tiny little courthouse, staffed by honest guppies and bunnies, overmatched by the wolves of cable television.
You really need to read the whole thing. I'm never quite sure with Ms. Lithwick, is she being overly cute, or just sarcastic as Hell? Click here to judge for yourself.

Tuesday, September 07, 2004

Friday In A Week In The Life Of An APA


Well, as they say, TGIF! Summer Friday's are normally pretty slow around the courthouse. Lots of people take Fridays and/or Mondays off in July and August to maximize their use of vacation time. Or to get a jump on a longer vacation. Friday is also catch-all and catch-up day in the arraignment courts, which means APAs out of the office, most of the day. On rotation one unlucky junior staffer gets to cover the one located in the courthouse. This is where our least favorite judge sits, A man who can take a two hour docket and stretch it to cover most of the day. This is also the only judge on earth (or at least my corner of it) who will start a jury trial on a Friday.

Now, most misdemeanor/ordinance cases will take less than a day of courtroom time. Even the drunk driving cases, where there are legitimate technical evidence and police procedure questions to be raised, take less than a day. Heck, voir dire on a typical misdemeanor may take longer than both the cases-in-chief combined. In a typical, contested misdemeanor jury trial, the parties have rested by the time noon rolls around. Closing argument and instructions after lunch, and the jury has the case by 2:00 p.m. or so, giving them almost three hours to come to a verdict. But that estimate of time contemplates getting started about 9:00 a.m., not spending three hours doing sentencings, show-cause hearings, guilty pleas, and pre-trial hearings left over from earlier in the week before even starting jury selection.

Of course, it's our fault, you understand. If those darn prosecutors would just quit authorizing so many cases. . . . Well, God would return to his heaven and all would be right with the world! Sorry if I sound a bit peevish. The other arraignment judge just declined to bind a case over as attempted murder after the preliminary hearing. He said something like,"If that's what you wanted, why wasn't it authorized that way? Bound over as charged!" Sigh. Sometimes the facts in the police report, which is all the warrant attorney has to go on, don't quite spell out all the tiny little details. Sometimes, and I know this is going to be a shock to some of you, the officer rushes the report! Or, sometimes the clerk typist doing the compilation/transcription of the raw field reports misses a page or a Dictaphone tape! And then everyone gets a surprise when the preliminary hearing isn't waived and we put on the witnesses.

This particular case was a self-help attempt to collect a drug debt. Already, your eyes are starting to glaze over -- who gives a tinker's dam about shots fired between a bunch of druggies? On the night in question, a car with two or three people inside cruised the victim's street a number of time, apparently look for the right house. Then it made a final pass with one person sitting in the passenger side window, leaning across the roof of the car. When the car was directly across from the target house, a series of shots were fired, into the front of the house, from an de-militarized AK-47. The car sped away, into the night.

After some really fine police work (I'm dead serious, here.) Three suspects were arrested. Two of the three couldn't wait to confess. One actually admitted to being the shooter! The one these two pegged as the driver/mastermind lawyered up within seconds of his arrest. Fine. The case could be made against all three of them for a charge of felony discharge of a firearm. At the time the warrant was authorized, the investigating officers thought there was no one at home when the shooting occurred.

As a rule, these probable cause hearings are held within two weeks of a defendant's first appearance. In that time, the police report is finalized (if it wasn't already). Most ofter, this means supplemental reports from officers who were only slightly involved in the investigation or arrest are transcribed and placed in official form. It this case, the one guy who was at home, watching our suspects cruise up and down the street, from the front porch, took off (can we blame him?) after dodging several bullets and didn't come back to town until almost a week later. But come back he did. And, seeing as he appears to have nothing to do with the drug-deal-gone-bad, he was willing to testify! Testified that he thought the shooter saw him on the porch just before he opened fire!

At the close of the proofs, our APA moved to bind two of the three boyos over on attempted murder as well as the firearms charges. The judge says, "I don't think they had the intent to kill anyone."

Well, things vary from jurisdiction to jurisdiction, but around here, at a preliminary hearing on a felony case, the standard to set the case over to the felony court is probable cause as to the crime and the identity of the criminal. Questions of fact are, as a general rule, to be left for the the trier-of-fact, be it judge or jury, in the higher court. Intent is almost always a question of fact. This is not an uncommon problem. Some examining magistrates have a hard time with letting the great mass of citizens make these decisions. A fact that has always puzzled me. Sigh.

In practical terms, because the case was sent up, following a full hearing, our remedy is to move the felony court to amend the charges. The standard of review on these sorts of motions (and the defense equivalent, the motion to dismiss for insufficient evidence) is abuse of discretion. Anyone with any appellate experience at all will tell you that this is a difficult standard to meet. Well, if the magistrate is wrong on a question of law, then that's abuse of discretion, more or less per se. That's the argument I anticipate making. As long as there is some, credible evidence of intent, the ultimate question is for the jury. We'll see whether the evidence supports an argument that it was credible and sufficient to put the matter in issue when I get the transcript.

After lunch, I spend the rest of the day trying to clean up all the little stuff that tends to pile up while I deal with the more interesting or pressing issues. Two more Freedom of Information requests. For some reason an insurance company thinks the best place to get a copy of the Sheriff's report is our office. Sorry, no. Police reports in our files are marked up by, first, the warrant attorney, and then by the trial attorney. This tends to turn them into attorney work product, which is exempt form disclosure under the act. They also have the contact information for victims and witnesses, which is also exempt. The Sheriff, on the other hand, maintains a properly redacted, free from comment copy of all the reports that have been forwarded to us for review. So, I spend more time advising these folks that if they want a copy of the Sheriff's report, their best bet is the Sheriff.

I finish the day by setting up the appeal files for the felony-murder that was returned to us by the intermediate appellate court and the shooting case set out above. Monday I'll get started on shaping the application to our Supreme Court on the one and the motion to amend on the other. And maybe I'll get a chance to work on the Blakely memo, again.

Leaving the courthouse on Friday is always a little different, especially during the summer months. Almost all of the prosecutor's staff, attorney and support staff alike, stay until after the official quitting time. Not long, after, for the most part, but 10-20 minutes on average, but long enough that the rest of the building, except for the custodial crew, are in their cars and out of the parking lot by the time we start to trickle out. On Fridays, this odd discrepancy is even more pronounced. Sometimes I reach the parking lot and it looks like the only cars left are prosecutor's staff and the second shift Sheriff's Deputies who arrive half-an-hour before the official quiting time. More on this later.

Saturday, September 04, 2004

Thursday In A Week In The Life Of An APA


Normally Thursday is just a marking time kind of day. This is the second/third day of trials in both "adult" courts and the second pre-trial hearing day in the juvenile court. Today, however, sucks.

I get into the office about 8:10 and find a message on voice mail from one of the senior trial attorneys. Have I heard anything about the O'Brian case? O'Brian was the defendant in a double murder case he tried a couple of years ago. It had been pending in our intermediate appellate court for almost a year when we finally had oral argument just over two weeks ago. And, no, I have heard nothing. So I track him down to find out what' on his mind. Instead of answering me, he plays be a message he found on his voice mail when he got in just before 8:00.

The message is from the court beat reporter at the local newspaper. It was recorded, according to the time stamp, at 10:30 the previous morning. She'd like a comment on the reversal of O'Brian and if he calls her back by 5:00 it'll be in the story she's doing for Thursday's morning edition. Wonderful! My colleague goes down to the lobby to get a paper and check my interoffice mail to see if anything, like a copy of the opinion, got dropped off early this morning. (Our county has the most half-assed mail system you're likely to see, but that's a story for another day.) Empty. Just like I left it.

I get on the court's website to see if the opinion has been posted yet, and, sure enough, there it is, in all it's evil glory. Unpublished, un-authored, and released Tuesday! What the Hell? I print off the slip and skim the high (low) points. Wonderful. Two of the three judges appear to have lost track of what is and what is not a jury question. Not to mention the concept of separation of powers and the basic meaning of "rational view of the evidence." Sigh.

Damage control time - I brief our victims' rights coordinator on just what this all means. (Not to brag [well, maybe just a little] but reversals are few and far between for our office) With just a little bit of luck, we'll be the ones to tell the families of the victims, before they see it in the paper.

The only bright spot? The smartest judge of the three dissents on the two key issues and writes a solid opinion explaining why the majority is wrong. This is useful in framing the issues for the petition to our Supreme Court.

We will be asking the supremes to take the matter up. Both a petition and a motion for peremptory reversal. That's a long shot, but I've had it happen before, when the lower court just plain gets it wrong. Anyway, the rest of the day is spent fly-specking the opinion and bouncing the alleged case law support for the evil holdings off the law as we know it.

I'm able to come to a couple of conclusions. Before I go into that, you should know this was a double felony-murder charge that involved a breaking and entering and a police pursuit, ending up with the deaths of two innocent bystanders when the defendant went the wrong way on a series of one-way streets attempting to shake off the officers. So, lots of issue were decided by the trial court and the appellate court is really reviewing the trial judge's decisions.

First, on the felony-murder question, it appears the majority really did overstep by holding that the trial court abused its discretion in not dismissing the charges as a matter of law.

Second, on the instructional issue, whether the jury should have been instructed on manslaughter as well as murder, it seems clear the majority really did misread a recent opinion by our Supreme Court on when such an instruction should not be given.

And that takes care of Thursday.