Wednesday
Morning routine well in hand, I finally get a chance to reply to my out of county colleague about Blakely and its effect, if any, on our sentencing law. My first reaction was to brush his fears off. We do indeterminate sentencing, pretty much, where the sentencing judge sets the minimum and the maximum is whatever the legislature set for that class of crime. It seems to me that there is plenty in Justice Scalia's opinion (and his previous concurrences and dissents in this area) to justify my complacency. Yes, I've received a bunch of supplemental authority briefs for cases pending in the court of appeals, but everyone of them raised the same issues in their main brief, relying on Apprendi. All but one of the supplements, so far, has done nothing beyond, in effect, whiting out Apprendi and inserting Blakely. More on the exception in a few days.
As I consider things, particularly some of the reporting from the truly excellent Sentencing Law and Policy weblog of Professor Douglas A. Berman, I begin to wonder if Blakely might not have some effects beyond the routine imposition of prison sentences. For example, restitution. Mostly of the time this is part of a guilty plea, but not always presented in detail during a trial. If a monetary loss isn't an element of the offense, we tend to downplay it, lest we be accused of improperly playing for sympathy for the victim. Also, the determination of whether to sentence a juvenile as a, well, juvenile or as an adult. The statutory rubric for the trial judge is shot through with considerations and phrases like "shall determine" that would probably start Justice S. twitching. Interesting. My out of county colleague and I are scheduled to present as mini-symposium on Blakely and its effect, or lack of same on our guidelines at the annual prosecutor's appellate forum in October, so I'll probably bore you with more than you ever wanted to know about another state's sentencing law.
Well, this all takes me up to lunch time, the best time of the day, particularly on Wednesday when it represents the hump! Half way through the week and no one's read me Miranda yet!
Lunch is always a big decision - go home or downtown or out to the north end commercial strip? Home is cheap, but pretty monotonous, downtown is not bad, easy walking distance, good selection of eating joints of all sorts (e.g. greasy spoon, Thai, New York style Chinese [whatever that is], Subway, Greek Coney, classic 'Family' restaurant, couple of bars with food, a genuine brew pub, a coffee house [not a chain], a deli, and so on) but it tends to be crawling with city and county and state employees and I see enough of them at work. The north end commercial strip is loaded with national brands (McD's, Arbys, Burger King, Wendy's', Pizza this-that-and-the-other, Chinese Buffets, Sveden House, Bonanza, another Coney [this one basic American], a brace of Darden Restaurants restaurants, a chain steak house, the mall food court, an Italian joint, a couple of non-buffet Chinese places, more Subways, and so on and so on.
So, I do what a almost always do, go home and do the soup and san or soup and salad routine. I get so tired of making decision.
After lunch, fighting the need for a post prandial nap (and let me tell you, strapping yourself to a PC and trying to do legal research after lunch is just asking for a keyboard imprint on the forehead) I work some more on the Blakely article. Then, for a change of pace, start researching our appeal on the question of whether arraignment court judges have any discretion in granting nolle prosequis without prejudice. It is clear the general trial court judges do because there is a statute that deals with indictments being nolle pros'ed, but there is substantial case law that says statutes that specify indictment don't apply to complaints, which is how misdemeanor or ordinance case are prosecuted. Interesting question, mostly because there is very little (for all practical purposes no) case law on this issue. There is ample case law on the question as pertains to indictments, but virtually nothing on complaints. I suspect this is because our arraignment court, as a court of record, has only existed for a handful of decades, having replace justice of the peace courts not all that long ago in terms of legal institutions.
As a final wrap up for the day, I knock out a pair of answers to freedom of information requests. Oh, yes. That's another little job that just sort of devolved on me - Deputy Freedom of Information Coordinator. By statute, the boss is the FOI Coordinator for the office, but he can appoint a Deputy - i.e. a minion, that is to say, me. The problem with FOI requests to the prosecutor is that most of our file is attorney work product and is exempt by court rule. That, and the statute requires a specific description of the 'document' or 'documents' the requester is looking for. Way too many requests are on the order of 'I request 'the prosecutor's file on the case against my son [name]' Today, I have one of those and one for a case that is pending on direct appeal with a court appointed attorney. Two polite rejections, one for lack of specificity and one passing the baton to the appellate attorney and I'm out of here!
Monday, August 23, 2004
Friday, August 20, 2004
Tuesday In a Week In The Life of An APA
Tuesday
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.
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.
Wednesday, August 18, 2004
A Week In The Life Of An APA
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.
Monday
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.
Monday
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.
Saturday, August 07, 2004
At the Threshold
Well, I suppose I should write something to get this weblog started. Otherwise someone might wind up here and wonder what the heck is going on. He's got a neat title, but no content, other than that profile. Can't have that,can we?
So, why "Mister District Attorney" aka misterda? It says right up there on top that I'm an assistant prosecutor, not an assistant DA. Well, as Robert Traver, another prosecuting attorney, said, introducing his collection of short stores Small Town DA, he used the term DA because that's the more familiar title, across the United States. Because of that familiarity, It sort of covers us all, the prosecuting attorneys, the state's attorneys, the county solicitors, the city attorneys, the township attorneys, and, of course, the district attorneys.
So, why a weblog, anyway? Because I've had the itch to do something like this for a while. Because Blogger enticed me with its ease of set up and maintenance. Because there are so few prosecutors (if any) doing weblogs. More defense attorneys than you can shake a stick at, darn few (none I've found, anyway) prosecutors. Prosecutors can be fun and amusing, too. Plus, we've got these great white hats. . . .
If I'm wrong, and the Internet woods are crawling with APAs, ADAs, etc., posting away, will someone let me know?
So, why "Mister District Attorney" aka misterda? It says right up there on top that I'm an assistant prosecutor, not an assistant DA. Well, as Robert Traver, another prosecuting attorney, said, introducing his collection of short stores Small Town DA, he used the term DA because that's the more familiar title, across the United States. Because of that familiarity, It sort of covers us all, the prosecuting attorneys, the state's attorneys, the county solicitors, the city attorneys, the township attorneys, and, of course, the district attorneys.
So, why a weblog, anyway? Because I've had the itch to do something like this for a while. Because Blogger enticed me with its ease of set up and maintenance. Because there are so few prosecutors (if any) doing weblogs. More defense attorneys than you can shake a stick at, darn few (none I've found, anyway) prosecutors. Prosecutors can be fun and amusing, too. Plus, we've got these great white hats. . . .
If I'm wrong, and the Internet woods are crawling with APAs, ADAs, etc., posting away, will someone let me know?
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