What Does All This Have To Do With The Law? Hey! I’m A Lawyer And That’s Close Enough For Government Work.

Missing In Action - Not Really

So, where the Hell have I been after making a big deal out of getting caught up and getting the ol’ writing batteries more or less recharged? To tell you the truth, I’ve been sort of zoning out over the holidays and not dong much of anything.

Work Is Still Work - Just Not Much Of It

Work has been at dead slow and steady as she goes for the last week and a half. Our Supreme Court sets the holiday schedule for all inferior courts and most counties just throw up their hands and adopt it, figuring "that’s one less thing to worry about in collective bargaining agreements." As a result, we generally have four day holiday weekends over the Christmas and New Year’s season. Our local courts pretty much go into stand-by mode for these two weeks. Even the crazed chief judge of arraignment court goes on vacation (I mean, consider - for six vacation days you get two full weeks off, with pay!) so no one is trying to do jury trials or anything too time consuming. The general rule of thumb for the assignment clerks is pre-trials, sentencings, pleas, settlements, uncontested divorces, and no-brainer motions only. Because our office is almost entirely court driven, this means a substantially reduced work load for these two weeks. We essentially go to half-staffing for the duration.

I’ve been doing some light adminstriva sort of work - figuring out how we’ll spend the intern budget for next year, reviewing a couple of requests for advice from local police departments, trying to sort out the implications of the Law Enforcement Officers Safety Act of 2004 for our concealed weapons charging policy, and generally wandering the halls with my coffee cup in hand, looking for people to talk to.

Home Away From Home

At home I’ve been house/dog-setting for the ex. She decided this was the last chance for a vacation with the kids before they are scattered to the four winds by all that adulthood stuff. Number 1 son graduates from high school this summer and will, we hope, be off to tech college. Number 2 son will be entering his senior year and, being a much more into high-school-as-a-life-style than Number 1, will probably be booked up for the entire school year. Number 1-and-only daughter is off on her own, in an east coast state with the current love of her life, trying to decide what she wants to be, now that she’s all grown up. So their mom comes up with a grand plan.

It starts with a call from one of those annoying time-share brokers. This one offers a cut-rate cruse to the Bahamas between Christmas and New Year’s with a couple of days in time-share condos in Daytona Beach and Orlando leading into dates of the cruise. She’s already booked the weeks of Christmas and New Year’s for vacation, so that’s no problem. The boys’ last day of school is the 19th and they don’t go back until the 3rd, so that’s no problem. What to do with the five days between the end of school and the beginning of the cruise? Visit Number 1-and-only daughter!

Now, to add to the merriment, Number 1 son is a typical 18 year-old high schooler. That is to say, he’d rather have multiple root canals without anaesthesia than spend more than four hours in a row with either of his parents, particularly his mother! So she bribes him by offering to take his best buddy, who is also kind of a pal of Number 2 son. Do you begin to see the picture? Mom, with three teenaged boy (a matched set of a 16, an almost 17,and a just 18 year old – the nadir of male adolescence) sets out on a whirlwind tour with four stops in six days before the cruise ship departs for the islands. When she explains this to me, I flash on "If It’s Tuesday, This Must Be Belgium" but years and years of experience allow me to keep my mouth shut. The only problem is what to do with the damn’ dog.

It's A Dog's Life

Well, Hell. I can’t take him because the condo association has a weird dog size rule - nothing more than 30 pounds - and Buddy, scrawny mutant Lab mix that he is, still weighs 50 or so pounds. The irony here is that I’m renting the condo from the ex, and the lease form she used for the previous tenants expressly stated NO PETS. (It’s a long and boring story, don’t ask.) Anyway, even though we don’t have a lease, and she’s willing to risk Buddy trashing the place, I’m not willing to start anything with the neighbors/association ‘cause we/she have been a little bit confrontational with them about non-owner occupation over the last four or five years. So, given that we live all of a mile, literally down the road, apart, I offer to stay with the mutt and run back an forth for a couple of weeks.

So far, it’s actually working out without driving either Buddy or me insane - well, more insane than when we started. My online classes went on break on the 22nd, so I only needed to use my own computer to access the online classrooms for three days - the grading and feedback I can prepare from any computer with Office installed. Which is what I should be doing instead of this. But it’s my break, too, so there.

The lovely thing about being here, rather than my place, is I don’t feel obligated to work on work or class stuff (other than the grading stuff mentioned above.) None of the working files for the upcoming classes or pending briefs are on her computer, and the work stuff probably shouldn’t be anyway. Nor do I feel any compulsion to do any of the dozens of little household tasks I have on my to-do list over at the condo. Out of sight, out of mind. I do swing by every day or so to swap out underwear and such and to check the email to keep the spam under control. And the regular junk mail, too. I’ll be going over shortly to post grades and feedback for the last week of classes before the break - thereby starting a week where I have no obligations at all, other than to the damn’ dog.

Goals, You Have To Have Goals (or is that Goa'ulds?)

I fully intend to take the opportunity to watch my backlog of DVDs so I can start the New Year with a clean coffee table. I’ve made a respectable start, if I do say so myself. I finished season 6 of Stargate: SG-1, the final chapter of my marathon re-watching of the entire corpus from season 1 on which was inspired by watching the season 7 DVDs when they came out a couple of months ago. Then I went through the first and only season of Eerie, Indiana. A remarkable effort that, were it offered on USA or TNT, might actually find an audience today.

After the surreal world of Eerie, IN, I watched the first season of The 4400, USA networks’ take on alien abductions and returns. I am currently watching set 1 of the recollected Rumpole of the Bailey consisting of series 1 and 2 and the made for TV movie "Rumpole Returns."(or maybe it’s "The Return of Rumpole" I forget.) Each "series" amounts to 6 episodes - a practice fans of English TV shows are quite familiar with. Set 2, consisting of series 3 and series 4 is waiting in the wings. Speaking of wings - I hope to follow that with season 3 of The West Wing. Sometime in there I’ll ,manage to get to The Office Special. God, life it good!

Hell Raising At Home For Fun And Profit -- Well, Fun, Anyway.

In between letting the dog in and out of the house 50 or 60 times a day and wearing a MisterDA sized depression in the new love seat in the TV corner, I’ve been rediscovering the mindless fun of Diablo II with the Lord of Destruction expansion pack. That and trying to figure out why it appears to make the wife’s computer randomly blue-screen-of-death-II reboot with an error generated by the CPU that indicates it involves a hardware or bus problem that may include the CPU itself. Wonderful. The first time it happens I recall Number 1 son complaining about the same thing when playing the online game Ruenscape on his mom’s computer.

He didn’t like playing on his computer, even though the problem didn’t occur there, because the 802.11b link was too slow. I suggested that he take some of his money from his horde and buy an 802.11g airport/router for his mom’s workstation to replace the 802.11b unit that was there, and an 802.11g network card for his computer. Seeing as that would mean spending about 70 bucks of his own loot, he asked for alternatives. I observed that there was a Cat-5 line running from one the router’s hardware ports down an air return, across the floor of this room to his X-Box. Yeah, says he, so what? So, take 20 bucks of your horde and buy an Ethernet card for your computer and I’ll help you install it. So we do that and Runescape runs fine on his computer. Still a tiny bit slow - the difference between an 860 MHz Pentium III with an 32 MB ATI Radon video card and a 600 MHz Celeron with a generic Nvidia card, I suppose. But no blue-screen-of-death-II crashes.

So, Diablo cause the same problem. I ran MemTest86 in standard test mode for 24+ hours with no RAM errors found. I opened the case an moved cards about to make sure the Radon card was getting air circulation - I even reinstalled the slot fan I’d used while waiting for a new power supply after the original’s fan died. I even tried returning to the onboard Intel video but the damn’ drivers won’t install properly and Diablo can’t find a video mode that it can use, so I’m left to conclude it is either the video card - a pain in the ass to replace as this is a PCI only mother board, or the CPU, an even worse pain in the ass to replace - tried to find a Pentium III lately?

More, later. I hear my 9th level Sorceress, Willow, calling. It's time to kick some more monster ass!

I'm Back!

I admit, I’ve been a little remiss in updating this thing the past couple of weeks. As I think I’ve noted before, as an appellate specialist in a prosecutor’s office, I pretty much write for a living. Creative writing, in a way, on deadlines that really mean something.

Now, by ‘creative’ I don’t mean I get to make it all up! No, that’s what the other side gets to do. What I mean is that I often have to find ways to present fairly mundane facts and routine applications of well settled law in ways that will not cause the judges and/or law clerks reading my brief to doze off, smashing their heads/faces on various items of furniture. Well, not more than once an issue, anyway. This is harder than you might think.

Aside:

Contrary to the way it is portrayed in the wonderful world of mass market entertainment, much of the practice of criminal law is boring and routine. Take a look at this post by a public defender who is being introduced to drunk driving defense. Holdin' a Deuce? Then you're a pain in the ass. . . (Her title, not mine.) Trust me, it’s the same from this side. When I was doing arraignment court prosecutions we (and by ‘we’ I mean the APAs and defense attorneys) used to joke that the defendant’s were probably being honest when they said they only had two beers – the first one and the last one. Everything in between was just a golden glow.

Repetitive, unoriginal work of any sort is harder than unique, original work. I don’t care if it’s digging ditches or cranking out appellate briefs. That’s what I’ve been doing the last few weeks. Answering unoriginal, unimaginative criminal appeals. The sort where, when you strip away all the make weight issues, amount to a whine that the jury believed the victim (or the State’s witnesses) rather than the defendant (or the defendant’s witnesses). If I had a dollar for every time I have actually written that sentiment in a brief I’d be able to buy that Palm Tungsten I’ve been drooling over at Big Boxes R Us.

Anyway, once I manage to stagger home and up the stairs to the PC, check the dozens of spam emails that I have received in the preceding 12 or so hours, deal with the few real emails, and review and post comments to the two/three online classes I’m teaching this week, the last thing I want to do is write some more. Sigh.

Well, last Monday I finished the last of the October crop of briefs (with two days to spare) and have been occupying myself with things like returning everything to its proper place, filing the unending stream of newsletters, tracking down various treatises and practice guides so the current updates can be posted, and reviewing and making notes on the next crop of briefs. Amazingly, from nothing pending on Monday, I have gone to four due in February in the space of about three days. If anyone cares, the due dates are 9, 10, 11, and 15 February. What this means, is that I’ve had, in effect, three days off. So I actually have some energy to expend on the blog. Imagine that.

Plea Bargains

Puzzled

So far, I haven’t been too vocal on some of the issues that float around the legal weblog world that are specific to criminal justice. I’ve spent a fair amount of time going into the how of prosecution decision making (i.e. all that stuff on warrants), a little bit on life in my world in the office and in the appellate courts, and some personal stuff. But a couple of things caught my eye and have apparently been churning around in my sub-conscious for a while. So I thought I’d share some thoughts on a prosecutor’s perspective on one of those topics - plea bargains.

Everyone knows what a plea bargain is, I suppose. Technically, it’s when the prosecuting officer determines that a bird-in-the-hand is worth two-in-the-bush and reduces or modifies the already issued charge (or charges) against a defendant in return for a guilty plea to the modified/reduced charge. The term is also used, somewhat loosely, to refer to sentence bargains and charge bargains.

In a sentence bargain, the prosecutor recommends a particular sentence to the court - depending on the state the court may or may not be involved in the negotiation and may or may not be bound by the recommendation. Note: In the federal system, pre-Blakely and pre-Fanfan and/or Booker, it looks to me like the US Attorney can pretty much guarantee a sentence bargain by careful manipulation of the "facts" submitted to the court for sentencing.

In a charge bargain, a potential defendant comes to the prosecutor, before a warrant is issued, and says something like ‘look, I did this thing and you’re going to find out about it. I’ll plead to a charge of {fill in the blank}’ and the prosecutor agrees and issues the warrant for the charge of {fill in the blank} and the defendant pleads guilty, as charged.

So, what’s the deal? Everyone knows about this, and, I suppose, the reasons cited for approving the practice. Heck, Chief Justice Burger even said,

"The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities." Santobello v New York , 404 U.S. 257, 261 (1971).

Well, this.

A while ago, a public defender blogging as Blond Justice posted a note about being a bit too busy to blog because she had been in a longish trial that her client had to do because there was no plea offer. Go here to see the post and the ensuing comments. Apparently this lodged in some hidden recess of what I like to call "my mind," and has been working away ever since. I woke up this morning at an ungodly hour, probably because I’d had two days off and my reptile brain figured it must be Monday! As I tried to return to the arms of Morpheus, one of the comments from that blog post jumped up and refused to leave me alone. So, here I am, at the keyboard, while the world is dark and cold and trying to make up its mind whether to rain or snow, thinking about plea bargains! You can read the initial post and the comments .

Now, what appears to have nestled into my sub-conscious and fermented (festered, you pick) are two things. First, Blond Justice’s comment about her client having no choice but tp do the trial, and, second, the comment "No offer? Shame." Well, three thing. The very first reply/comment about shouldn’t there be an offer to save the taxpayers the cost of a trial, also popped up this morning.

So what, exactly, is it that bothers me about this? I think it’s the sense of entitlement I get. When did the idea that there is a ‘right’ to a reduced charge become the norm in criminal law circles? Around here, it was sometime in the last 10 years or so. When I first started doing criminal law, as a law student intern in 1986, everyone I dealt with, prosecutors and defense counsel alike, knew that there were cases where an offer was routine (e. g. the offer on first offense possession of a personal use quantity of marihuana was almost always plead as charged with a delayed sentence and dismissal after a year’s non-reporting probation - or sometimes reporting if the judge didn’t like the defendant’s looks or something) and there were cases where no offer was the routine. For example, domestic violence, child abuse, destruction of public property, second or greater drunk driving cases. Of course, nothing is absolute in the real world.

The best defense attorneys would fly-speck a police report, maybe talk to a witness or two, and decide how likely a jury conviction was, based on their own experience. Note how much this is like the initial decision by the APA who reviews a warrant request. The difference, in misdemeanor cases, by and large, is that the defense attorney is looking at the case after having met with the defendant and evaluated his or her story first hand. Also, in my town it is not unlikely that the defense attorney will have more experience, sometimes significantly more experience, trying cases than the APA who reviewed the warrant request. Armed with this more intimate knowledge of the case and the client, defense counsel may very well be able to convince the trial APA that a better offer, or a below policy offer might be advisable. But if the APA determined that it wasn’t, no one complained about doing a trial.

When I did my basic course, years and years ago, that if an unrepresented defendant told me he didn’t do it and meant factually he didn’t do it, not that he just didn’t think he was responsible because he didn’t understand the law, I should not offer a plea bargain of any sort because to do so might induce an innocent man to plead guilty! Somehow, I suspect that particular idea may have fallen by the wayside in some jurisdictions. Indeed, raising this issue on appeal hasn’t been all that fruitful. See, for example, North Carolina v Alford where the Supreme Court essentially told Alford "tough luck. If you didn’t do it, don’t plead to it." And, ethics aside, there are other grounds on which to look askance at the whole idea of plea bargains. I’m not all that sure I follow the rational offered by this author , but it’s not all that far out, particularly in the situation the author seems most concerned about - lesser pleas offered to co-defendant’s.

All of which is a bit afield of where I started, isn’t it. I guess what bothers me is the idea that the criminal law has a built in reduction in culpability that a the defendant deserves. In my opinion that way of thinking leads, inevitably, to systematic overcharging by prosecutors is such a subtle way that no one notices until the charging standard slipped from can you prove this charge beyond a reasonable doubt to is it possible you can prove this charge beyond a reasonable doubt to there’s probable cause to charge this, and he’ll plead to this lesser/alternative charge. The de jure standard is still can you prove it beyond a reasonable doubt, but the de facto standard is something less. Not to mention that it doesn’t jibe with my ideas on what the purpose of the criminal law is. But I’m far from the mainstream there, so maybe I am getting worked up over nothing.

Consider this, though. If you do an illegal act, if you hit all the elements of, for example, drunk driving, why should you expect not to be held to account for exactly what you did? Why should your willingness to plead guilty induce me to give you a reduced charge just to avoid presenting the case to a jury and letting the facts be determined by your peers? Isn’t mercy, in the form of mitigating circumstances at sentencing the role of the judge?

And thus we come, by very roundabout means, back to Blakely and role of judges and juries. I suppose some of the urgency about plea bargains can be charged to the morass of mandatory minimum sentences and guidelines that have been forced on judges in the name of getting tough on crime over the years. In my state, at least, none of that nonsense applies to misdemeanor cases, so a judge can still be merciful within the dictates of his own conscience.

Intermission

Now that you know more then you ever wanted to know about the genesis of an arrest warrant, I thought I’d take a break and natter on about some other subject for a while. What would be a good subject? I know!

What Mr. DA’s Been Watching Lately

Somewhere down in the mists of the first entries I think I mentioned I’m something of a TV addict? Well, addict is probably too harsh a word. I’m still getting by on one VCR and a pseudo-DVR lash-up with my ATI All-In-Wonder card hooked to splitter off the cable modem. And I’ve spent way less money on DVDs so far this month. The entertainment budget may be put to the test tomorrow. The seventh, final, season of Buffy hits the shelves, along with season 3 of Smallville and the complete Buck Rogers collection. Decisions, always more damn’ decisions. Based on a number of factors, mostly having to do with length of time since I’ve seen the original airings, I think I’ll have to go with Buffy. See if my logic is, well, logical.

On the one hand, Buck Rogers ran from 1979 to 1981, with 37 episodes. I watched pretty much all of them at the time. Call it 25 years ago. I have vague memories of Erin Grey as the hottest S-F babe up to that point, but that’s about all. On the other hand, Smallville Season 3 is last years first-run and I saw all of those in the original order and in random re-runs. I have a pretty good recollection of the season’s arc and the stand-alone shows alike. So, not really needing to catch up. On the gripping hand it’s been a couple of years without a Buffy fix on a regular basis. For various scheduling reasons I never got into the habit of catching the FX re-runs (scheduling and the way they cut to gain time for more and more commercials, that is) sooo. . . I’ve been too long without Sara Michelle Geller and Allison Hannigan, not to mention Emma Claufield. On, yeah, and the writing - always the writing. Yep, Buffy season seven it is.
Well, that takes care of tomorrow and that collection will go into the to-be-viewed pile with season three of The West Wing; We Were Soldiers Once; Tombstone; High Noon; Rocketship X-M (don’t ask); The Stone Reader; and Kingdom Hospital. Currently, Stargate SG:1, season seven, is working its way through my DVD player.

And here's an bit of trivia for you -- A Stargate SG:1 season takes almost twice as long to re-experience as any other show because every episode has an audio commentary, and if you have any interest at all in how the process of making a weekly television show works, they are well worth the time. That, and it is really clear that the people of this cast and crew like each other, a lot, and are having an amazingly good time doing both the show and the DVD commentaries.

Mr. DA's Pick Of The Law Shows

I have a very low tolerance for legal/cop dramas, for the most part. Of the current crop, the only one I care to spend time on is The Wire on HBO. Hands down, this is the best police show on the tube. The first season, available on DVD was excellent - every bit as good as the first four seasons of Homicide - Life On The Street. Not surprising seeing as David Simon provided the core for both shows. Simon wrote the book that Homicide. . . was based on. Called, oddly enough, Homicide: A Year On The Killing Streets.

The Wire is just great. It's like Joseph Wambaugh on steroids and crack. The second season, coming on DVD early next year, was even better than the first for showing the reality of serious, major crime investigation. The third season, currently in first-run, I don't know. I've been having a friend tape the shows and am just getting into the first couple of episodes, so things are still taking shape.

In second place for the cop shows is The Shield. Guilty pleasure. Pure and simple. Suspend your disbelief and sit back for the ride. This is like NYPD Blue on steroids and then some. Great acting, and just plain cool stuff. Favorite scene - Vic Mackey, in foot pursuit of a street punk, runs full tilt into a board fence across an alley -- and runs right through it in a very satisfying explosion of pieces of wood. Like I said, guilty pleasure.

General legal hijinks -- Boston Legal. The spirit if not the reality of the life of the law. Ally McBeal meets The Practice. Watch just one episode to see William Shatner chew up the scenery and demonstrate why he's had one successful series after another. Not to mention he's looking pretty good for a guy who's going to be 74 next year.

That's about it. I don't like Law and Order in any flavor, and I hate CSI whatever. I can watch NYPD Blue but it kind of lost its appeal for me when they offed Jimmy Smits. Loved The Job, Dennis Leary's first series, and really want the DVDs to come out real soon now. Next - Lawyer Movies!

Is It Soup Yet?

Not quite yet.

OK. To recap: Request by police to charge someone; reviewed by an APA to determine whether there is a crime and, if so, which one; further review by the APA to decide whether the degree of proof represented by the police report satisfies the elected prosecutor’s criteria that the case, as it now exists, can be proved to a jury beyond a reasonable doubt; assuming it can, the request is marked up with the necessary statutory language selections and returned to Intake; paper warrant is generated and then signed by the APA, authorizing the issuance of the warrant; complaint portion of the package is sworn to by an officer, either before the clerk of the court or a magistrate. Hang on, we’re almost there.

Finally!

At this point we’ve almost got our warrant. The final step (usually) is for a "neutral, detached judicial officer" to review the basis for the complaint and decide if there is probable cause to believe the specified crime has been committed and that the named individual did it. Huh? You may well ask. What was all that rigamarole with the APA? Didn’t that amount to a determination that a crime was committed, etcetera, etcetera? Well, consider:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be eized."

Look familiar? Of course! It’s the Fourth Amendment to the U.S. Constitution. And, like much of that document, it assumes things that were so obvious to the framers that they didn’t bother to spell them out. Most importantly, for this discussion, that the person making that probable cause determination is a person who has no interest in whether the warrant does, in fact, issue. That is, someone other than the police or the prosecutor, usually referred to as a neutral and detached (or disinterested) judicial officer. In our case a misdemeanor court judge or a magistrate of that court. Most of the time, the magistrate will agree that the facts and circumstances demonstrate probable cause sufficient to begin a criminal prosecution. Sometimes they don’t. Then what happens?

In some cases, the magistrate simply thinks there is a missing element of the crime. For example, there is insufficient proof of the value of stolen property to support the degree of offense charged. Generally, these kinds of deficiency are easy enough to fix. In other cases, the magistrate disagrees that a crime has been made out. Those are a bit harder to resolve.

If the problem is that the magistrate doesn’t understand the law, that can be addressed in as politic a manner as possible. There have been occasions when the chief assistant or even the elected prosecutor have found themselves conducting a one-on-one seminar in some esoteric aspect of substantive criminal law for one of our judges. I mean, let’s face it – legislatures can get up to some real hijinks when they take a first run as things like identity theft, elder abuse, revisions to the drunk driving statutes, and so on. Not to mention the hilarity that can ensue when they attempt to revise statutes that have remained essentially unchanged for 150 years or so. In all fairness to the magistrates and judges of high volume courts, it can be a little difficult at times to keep up with 1) the volume of legislation relating to criminal law and procedure, and 2) the volume of case law on the same topics. When you explain changes in either the letter or the interpretation of the law, supported by real evidence that things are pretty much the way you claim, most of the time the problem goes away. Not always, though. That, however, is a highly unusual situation and will be considered at another time. For now, let's assume the magistrate takes a look at the complaint, reviews any documentation, and signs the warrant. That's the point where criminal process is said to have issued.

The warrant, authorized and issued, is returned to the requesting police agency and next steps in the process are up to the officers.

How long does this whole process take? Depends on the case and how badly the warrant is needed. I've seen attempt murder warrants issued in two to three hours. On the other hand, I've seen complex drug conspiracy warrants that spent weeks between the submission of the request and the issuance of the warrant. Average time for non-custody misdemeanors and low-grade felonies -- about a week.

The Saga Continues

Is It A Warrant Yet?

No, not quite yet.

At this point, an APA has exercised her massive intellect and experience and determined, based on the information she has before her, that the specified charge can be proved to a jury, beyond a reasonable doubt. She has marked up the request packet with the statutory language of the charge or charges, making the language specific to this offense and this offender. She’s noted any special notices that need to be added. (E.g. habitual offender, felony involving a minor, felony involving a motor vehicle, etc.) She’s marked the witnesses to be subpoenaed for the probable cause hearing, and, finally, she has initialed and dated the authorization box. At this point the packet goes to a warrant clerk to be prepared.

Slight digression -- before the request is sent to an APA for review, the intake section has logged it in, assigned a tracking number, made sure all the required bits are there, and entered the basic information into the case management program. In fact, this is all done more or less at the same time. The unique tracking number is assigned by the program when the request is logged in. This number stays with this request/case from now on, come what may. After this administrative folderol is accomplished, the request is assigned to a screening APA.

Back to the main event. The APA has authorized the issuance of a warrant to arrest some poor unsuspecting criminal. How does that get into the hands of the folks who are charged with making that arrest? The warrant clerk takes the packet and calls up the initial case file using the tracking number. The defendant's name and basic information, along with the statutory citation for the requested charge, have already been entered so the next step is the fine detail. The actual charge as customized by the screening APA. Any notices that have to be included. The names and addresses and witness type for all of the listed witnesses. The ones the APA has marked for subpoenas are flagged. Any special categories of crime are noted at this point. E.g. domestic violence, firearm, major narcotics, etc.

Once the program auditor is satisfied that all the required information has been entered, a warrant set is printed. In our case, it's a plain paper warrant generated via an HP LaserJet. The warrant clerk assembles the whole packet in the proper order, staples it together and puts the whole thing back in the APA's box for final review and signature.

Generally, within a hour or two of the final packet being dropped in her box, the screening APA will review the warrant for correctness (no typos, no mis-marked variables, proper notices) and sign and date the authorization block. Then the whole thing goes back to the warrant clerk to be sorted in the holding bin for the appropriate police agency.

Are We There Yet?

No. The APA, acting on the authority of the Prosecuting Attorney, has authorized the issuance of the warrant. It's still not a warrant. Looks a lot like one, but it hasn't been issued because it's missing two important things. First, the signature, under oath, of a police officer (or other witness) attesting to the facts on a complaint. A complaint is part of the warrant packet, and looks a lot like the companion warrant. The complaint sets out the facts that show a crime was committed. The complaint is usually signed by an officer "on information and belief" but sometimes it's a civilian witness with actual, personal knowledge of the facts. Either way, that signature says that, to the best of the signatory's knowledge, the crime alleged in the warrant happened, and the defendant named thereon did it. This oath and signature can be administered/witnessed by a judge, a magistrate, or a clerk of the court. If the complaint is signed before a clerk, it's set aside for final review by a judge or magistrate. If it's sworn to and signed before a judge or magistrate, in the normal course of events they will review the warrant and determine if they agree with the APA that there is, at this point, probable cause to believe a crime was committed and that the named defendant committed it.

More Warrant Stuff

Now, Where Was I. . .

Well, OK, after reviewing where I was when I last posted (really, I want to update this more than once a week, the day job just hasn't cooperated) we were talking about how a request for a warrant is review and authorized. So far, we've talked about two, general, standards for authorization of criminal charges. The first is mere probable cause that the suspect committed the crime. The second, and most common in my experience, is the likelihood of proving the case to a jury, beyond a reasonable doubt. There is a third standard that may be used, depending on the philosophy of the head prosecutor. In my own mind I call it the "certainty of conviction" standard.

Now, whenever a jury is involved, there is no such thing as a sure thing. There just isn't. In our system of adversarial trial there is this little doctrine that prosecutors hate to talk about called jury nullification.

Stand By, Digression Ahead!

What that means, essentially, is that the jury, as the conscience of the community, can ignore its oath and acquit the defendant regardless of how overwhelming the evidence against him is. The most famous example of mass jury nullification involves the fugitive slave law of 1850. This law required all citizens to assist in the recapture of fugitive slaves, regardless of whether slavery was legal in state where the alleged offense occurred or not. Northern juries routinely acquitted abolitionists who were charged under that law. There are legal historians who believe the modern judicial hostility to jury nullification originated in this era. But see this site for more than you probably want to know about the subject. Suffice it to say, a jury can acquit for any reason, or for no reason, and the verdict is immune to attack.

Brace For De-Digression!

As I was saying, there is no 100% certain verdict in any trial, let alone a criminal prosecution with the beyond a reasonable doubt burden of proof. But an experienced trial attorney, assisted by experienced investigators, can generally come up with a pretty fair idea of what a typical jury in her jurisdiction will do. When applying this standard, review and authorization may take substantially longer, but the final decision to charge is going to be as close to a lock as it ever gets. So, given the time and effort it takes to apply this standard, when would an over-worked, under-staffed government bureaucracy ever invoke it?

There are those cases where an elected prosecutor (and almost all of them are elected) will tread very carefully before authorizing a felony warrant. Some examples, cases where prominent local politicians or citizens are accused of particularly nasty crimes, cases where a bad guy winds up dead at the hands of a citizen under suspicious circumstances, cases were the victim is a popular or highly sympathetic figure, or the suspect is a popular or highly sympathetic figure, that sort of thing. Basically, cases where you need to win if you charge it.

On the other hand, some times the suspect is so well known, etc. that your discretion not to charge is severely limited. Does anyone think O. J. wasn't going to be charged with something after the slow-speed chase?

Next time: What happens after the darn thing is authorized?

Felony Warrants, Get Your Felony Warrants Right Here

So What Really Happens

to turn Sammy Suspect into Danny Defendant? The short answer is that the cops convince the reviewing APA that s/he should authorize the issuance of an arrest warrant. The long answer follows.

There are, in practice, a number of different standards that can be used to determine whether a warrant should be authorized. They boil down to three, in my experience. The lowest, and the one I've never heard of being the official policy of any of the offices I'm familiar with, is probable cause. Probable cause is the standard applied by the judicial officer who issues the warrant once it has been authorized by the prosecutor. It would seem logical to use the same standard, more or less, for authorization in the first place, you'd think. But it's really not.

Most of the time, when a felony warrant request hits the desk of some lucky APA it's an indication that the police think the investigation is complete. There are, obviously, exceptions. But for the run of the mill felony, e. g. a breaking and entering or a serious assault, when the warrant request is submitted, the police don't expect to do much more than serve the warrant and any subsequent subpoenas for court proceedings. This belief is not always shared by the reviewing APA.

Sometimes the problems are minor administrative or clerical glitches like an incomplete witness list or a missing criminal history. Sometimes they are major administrative or clerical hitches like a missing report from an other officer or an assisting agency. And sometimes they are just plain screwed up. Examples of the last category are eye witnesses who were not interviewed, controlled substances with no weight, or stolen property with no description or value.

If the standard for authorization is only probable cause, the same probable cause that justifies an officer in making an arrest, then it is more than likely that warrants could be (hell, would be) authorized before the investigation is complete. And an authorized warrant most generally rings the final bell on any run of the mill investigation.

Don't misunderstand me on that. I'm not saying there is never any follow-up investigation once an APA puts her Joan Hancock on a warrant authorization. There often is. Serious felonies like murder, rape, large scale theft/embezzlement, major weight drug offenses, and the like are going to involve active investigations right up to the time the judge charges the jury. But a B and E of a store, a low grade concealed weapons charge, minor drug possession, petty theft and similar property crimes are not likely to inspire CSI-like investigative efforts. There is a lot of crime out there, and a limited number of police officers to investigate it. Add in local idiocies like a major department that does not allow uniformed officers to do any investigation beyond the immediate incident report, and you have a serious, on going resource allocation problem. This is just a fact of life for police supervisors and prosecutors alike.

So what does a canny boss prosecutor do to minimize the number of cases that are authorized without sufficient investigation? He institutes a policy of only authorizing cases that, at the time of authorization, in the opinion of the authorizing APA, can be proved to a jury beyond a reasonable doubt. The way our charging policy explains this is by directing the screening APAs to ask themselves this question: If you were to take this case, as it now exists, with the testimony of the witnesses, and the other evidence, conforming to what is represented in the police report, could you prove this case to a jury, beyond a reasonable doubt? If the answer is "yes" authorize the warrant. If the answer is "no" why is it "no" and what needs to be done to change the answer to "yes?"

When the answer is, in fact, "no" the reviewing APA writes a detailed note on the request to charge, explaining just what she thinks is necessary to get to "yes" and returns the package to the requesting agency.


More, anon.

So, What Do Prosecutors Do, Anyway?

Other than crush crime, fight for truth, justice, and the American way, and help little old ladies across the street, you mean?

Based on questions I get from my business law students, I have the idea that a lot of people don't have a very good idea on how things work in the non-TV world of prosecution (law enforcement in general, for that matter) so I thought I would spend a few posts talking about how a typical mid-sized prosecuting attorney's office works. You have to keep a couple of things in mind. First, there are, generally speaking, 52 jurisdictions in this United States of ours. Fifty states, the federal government, and the District of Columbia. Maybe that's only 51.5 with DC. I don't know enough to know whether or not the District is really all that separate from the federal system in general. However you count them, that's a lot of different ways of doing things: defining crimes; setting procedural rules; establishing responsibilities for different functions -- heck, just deciding what the functions are and who is going to do what is a big deal.

Second, within most of those jurisdictions, there are smaller units of government that, in most cases, are the ones charged with providing front line criminal justice services. Most of us call these things "counties" (parishes in Louisiana, boroughs in Alaska, and they don't count at all in Connecticut and Rhode Island) and there are a lot of them. Three thousand and thirty-three of them, plus 33 city/county combined governments, according to the National Association of Counties. This means, in addition to the gross differences between states, there are at least 3066 different ways of doing everything involved in the criminal justice realm. And I'm only talking about prosecutions on behalf of the State of {fill in the blank}, or the People of the State of {fill in the blank}, or the Commonwealth of {fill in the blank}. This does not take into account the prosecutions initiated by City, Town(ship), Village, or what have you attorneys and the infinite number of ways those things can proceed. So, consider that what I tell you about a a typical office here in the vast Midwest may not even be close to what your county/parish/ borough/city/etc. government does.

Job One

So, what is the number one job of the prosecuting attorney? Well, like everything else in the wacky world of criminal justice, it's subject to debate, but my pick (and it's my blog, so there) is the authorization of criminal warrants. Every other core function of the office flows from this activity. And here's where your mileage may really vary.

And why is that, exactly? Because every state has different ideas of how to get from the police investigation to the formal institution of charges against a suspect. This is most obvious in the prosecution of misdemeanor charges. Some states allow the police to issue a citation and proceed on that up to the point where the defendant enters a formal plea of not guilty. At that point the prosecutor becomes involved. Some states allow minor offenses or offenses of a specified type (e.g. traffic, or fish and game violations) to proceed to completion without the prosecutor ever being involved. Usually, these are offenses where there is no right to a jury trial. On felonies, things tend to be more similar from state to state. In part, this is because of constitutional limits on how long the police may detain a suspect before they must bring him before a judicial officer, and what the judicial officer is supposed to do once the miscreant is before him or her.

More, later.

Still Not Dead

Still Here, Head Down, Fingers Flying

Still doing heavy duty, production writing at work. Five co-defendants, convicted of felony assault. One of the five, the most egregious of the bunch, plead guilty. Four were tried in a single jury trial last year and convicted of various things. Three of the four claimed their right to appeal . This month, all three briefs trickled in. And the only thing they all have in common is a complaint about the scoring of one item of the sentencing guidelines. Well, there is some savings of time, over the long haul. I only have to do the statement of facts once, then adjust it based on which brief I'm replying to. But it can get boring in a hurry.

What's Up With Mister DA

MIA No More

Geez, it's been awhile since I posted, hasn't it? To the one or two faithful fans, my apologies. I know how irritating it is to keep hitting a site and find it hasn't been updated FOREVER!

I've been doing head down writing the last two weeks, and the last thing I've wanted to do when I got home was strap on another monitor and keyboard and strain the eyes a bit more. If you know what I mean. Today, I finished 99% of a big deal application for leave to appeal to our state supreme court (all that's left is formatting stuff and getting the proofs of service right), so I took a little break and started to inventory the library. Ah, restful. At any rate, I feel up to a few lines here, so no one thinks I've died. Or gone over to the dark side, or something.

Ken Lammers sent me an invitation to guest blog on his CrimLaw blog while he was away, but something in my privacy software grunged it, so, I guess I missed my chance at fame and fortune. Thanks, anyway, Ken.

Let me tell you about last Friday. You might remember my comment about some days you eat the bear. . .? Well, Friday last was clearly one of those days the bear looks forward to.

Recall the two day adventure I described at the Wonderful World of Oz we like to call our intermediate appellate court? Well, the opinions showed up in the morning e-mail last Friday. This is all of what, three weeks since oral argument? If that's what you can call it. Actually, this is about a week longer than usual. More proof that the panels write the opinions well before the argument. but let me back up a step.

Friday was the day set for my augment in one of our felony parts, regarding an appeal of a arraignment court decision on a probable cause hearing. In brief, our defendant either clotheslines or grabbed and threw on the ground a genial drunk who was wheeling by on his bicycle. The drunk hits the ground, head first, and doesn't move. Defendant runs off and bystanders call 911. The victim is messed up -- a lot. He's currently a resident of an extended care facility and will probably be there for a long, long time. The magistrate declined to hold our defendant for trial on the felony assault charge, opining that he didn't believe there was any intent to injure the victim. Sigh.

In our state, intent is almost always a jury question. As long as there is some evidence that there was a felonious intent, the magistrate is supposed to send the matter to the felony court. Or, in this case it could have been held as an aggravated battery, a one year misdemeanor. That is, the maximum sentence of confinement could not exceed one year in the County jail. Our least favorite judge did neither, dismissing the whole matter out of hand. At that point, we have an appeal of right to the general trial court. Friday was our day to argue.

Opposing counsel is a mellow general practice lawyer who is one of my contemporaries from undergraduate days and who actually married one of my high school classmates after we graduated from college. We lost touch, except for one or two high school reunions when he would accompany his wife back to the glory days of our misspent youth. Then, here he is, practicing law, right where I wind up, practicing law, 27 years after college.

Like I said. He's pretty mellow about it, as is the judge, another more or less contemporary of mine, by age if nothing else. We're the only thing on his docket this morning so, after we run down the court reporter, we get on with it.

A lovely, civilized 'argument' with the dispute clearly stated and a pretty good possibility I'm going to win. What a lovely start to a slow day. Ha!

I'm back in the office about 20 seconds before my secretary and the juvenile secretary (she's the secretary for the juvenile division, if you were wondering) corner me and want to know if I've seen the opinions. Now, I went from the parking lot to my office, picked up my case file, and went directly to the judge's chambers and from there to the courtroom and now I am standing in the door between the victims' rights office and the main corridor of the suite. When, exactly, I am to have seen anything is a mystery. At least to me.

Anyway, no surprise on the parental right termination case - reversed, remanded, etc., etc. On the evasive drunk, kind of disappointing - drunk driving convictions reversed, resisting arrest reversed, failure to report a serious accident, affirmed. Sigh. I wish they would have asked questions. Apparently, the panel felt if the officers had time to get a blood draw search warrant after they winkled the defendant from his den, they had time to get a search warrant for him before prying him out of his hole. Not a lot of weeping and wailing and gnashing of teeth on this one - the judge lo-balled the sentence and, as far as I know, defendant was discharged from probation a couple of months ago.

Today, the bear seems to be tucking in his bib and settling in for a good meal. Ah, well.

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?

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!

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.

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

Sunday

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.

Friday In A Week In The Life Of An APA

Friday

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.

Thursday In A Week In The Life Of An APA

Thursday

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.

Wednesday In A Week In The Life Of An APA

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!