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!