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.


Rusty said...

Did you notice that the dates above your posts don't match the day you mentioned?

Mister DA said...

Yep. That's because I'm far from RTB (Real Time Blogging) here. Between my real job and teaching business law online, sometimes I just get written out and, as you can see from the dates on the various entries, some little time passes before I get wound up enough to come back. I'll be trying to do more day to day stuff now that I actually managed to complete that damn week!

notguilty said...

We have a judge in my jurisdiction who can turn a one hour morning calendar into an entire day also!! It makes me insane because as a private lawyer you can't charge enough to take a case in his court since you know it will be the only case you will get to all day. It makes me crazy!

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