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?
Friday, October 29, 2004
Thursday, October 14, 2004
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.
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.
Tuesday, October 12, 2004
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
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.
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.
Tuesday, October 05, 2004
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.
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.
Thursday, September 23, 2004
Once More, Into The Breach Dear Friends
Day Two In Wonderland
So, here I am, back in the land that law forgot, for the second day running. Today’s case is a felony drunk driving were the defendant managed to get charged with two counts, which just seems to have irritated retained appellate counsel beyond all reason.
The argument on appeal is that it is not fair that the witnesses, friends and neighbors of the defendant, fingered him for the sheriff’s deputy who investigated his one car rollover accident. That it’s not fair that the police information network was able to tell the deputy where he lived, according to his drivers’ licence information. That it’s not fair that the same police information network was able to provide the deputy with the dates of his several previous drunk driving convictions so the deputy was aware that he was investigating a felony. And that it is really, really not fair that the deputy, less than 30 minutes after arriving on the scene, having found and identified the vehicle the defendant had been observed driving away from the scene of the accident, in the driveway of the address on his drivers’ license, and having knocked on the door and then asking his mother if he was at home, and having been told he was, could enter the house and make an arrest after the defendant had taken the trouble to get into bed and pull the covers up over his head. (Apparently I’m going for the Leo Tolstoy sentence length award here.)
So, two counts? After he flipped his own car (mind you, this was in the middle of the afternoon) in front of three or four witnesses, two of whom knew him personally, the defendant called a relative to come get him. Relative came and was walking up and down the side of the road with the defendant, trying to get him to calm down. At this point, the defendant sees the approaching emergency flashers of a volunteer firefighter/EMT and thinks the cops are after him. Well, they were, but not for another ten minutes.
Realizing that he is going to be in deep trouble (not only is he drunk, his license is revoked for the previous set of drunk driving convictions) he decides to make a quick getaway - in his relative’s car. When the relative realizes what is going on, he wisely declines to either ride shotgun or attempt to subdue his bigger, younger, drunker relative, opting to wait for the authorities. The defendant drives off in front of even more witnesses who know him, including the just arrived chief of the local volunteer fire department. Thus, once the defendant is hunted down and a blood alcohol analysis shows he’s, oh, twice the old limit (almost three times the new limit) two, count ‘em two drunk driving charges.
This was a three or four day jury trial. The defendant retained some out of town hot shot who papered the trial court with motions seeking to suppress everything but the color of the arresting officer’s eyes. Some of them even had merit. Eventually, the thing went to trial and the jury convicted on both counts in about 15 minutes.
Anyway, like I said, some of the arguments made by trial counsel had merit and the appellate attorney, also retained, parroted them. I think I’ve covered the law and the real facts fairly well, but my confidence is just a tiny bit shaken by the caviler attitude this panel displayed yesterday. At least today opposing counsel blew the deadline for preserving argument and hasn’t moved for special argument.
Once again I am the first case with anyone endorsed for argument. After the PJ makes his introductory remarks (identical to yesterday’s, as close as I can tell) I head up to the lectern and start my pitch. "May it please the court, . . ." at which point the PJ interrupts and says "Good to see you again, Mister DA. I just wanted to let you know we really appreciated your argument yesterday, it was very helpful. Now, is there anything special we should know about this case?"
OK, obviously, there is some sort of space/time warp on the expressway between my county and the big city! Right! Thanks to extensive training by the United States Army in the days of my misspent youth, I have a finely honed sense of when to quit while I’m ahead. "No, Your Honor, I think I’ve covered everything in my brief, so, unless there are any questions, I’ll let the court get on to the rest of the docket." No questions (thank God!) and I’m on my way to the parking lot. Some days you eat the bear, some days the bear eats you.
We don’t have opinions in either case, yet. I expect them this week or early next week. Any bets on which way they come out?
So, here I am, back in the land that law forgot, for the second day running. Today’s case is a felony drunk driving were the defendant managed to get charged with two counts, which just seems to have irritated retained appellate counsel beyond all reason.
The argument on appeal is that it is not fair that the witnesses, friends and neighbors of the defendant, fingered him for the sheriff’s deputy who investigated his one car rollover accident. That it’s not fair that the police information network was able to tell the deputy where he lived, according to his drivers’ licence information. That it’s not fair that the same police information network was able to provide the deputy with the dates of his several previous drunk driving convictions so the deputy was aware that he was investigating a felony. And that it is really, really not fair that the deputy, less than 30 minutes after arriving on the scene, having found and identified the vehicle the defendant had been observed driving away from the scene of the accident, in the driveway of the address on his drivers’ license, and having knocked on the door and then asking his mother if he was at home, and having been told he was, could enter the house and make an arrest after the defendant had taken the trouble to get into bed and pull the covers up over his head. (Apparently I’m going for the Leo Tolstoy sentence length award here.)
So, two counts? After he flipped his own car (mind you, this was in the middle of the afternoon) in front of three or four witnesses, two of whom knew him personally, the defendant called a relative to come get him. Relative came and was walking up and down the side of the road with the defendant, trying to get him to calm down. At this point, the defendant sees the approaching emergency flashers of a volunteer firefighter/EMT and thinks the cops are after him. Well, they were, but not for another ten minutes.
Realizing that he is going to be in deep trouble (not only is he drunk, his license is revoked for the previous set of drunk driving convictions) he decides to make a quick getaway - in his relative’s car. When the relative realizes what is going on, he wisely declines to either ride shotgun or attempt to subdue his bigger, younger, drunker relative, opting to wait for the authorities. The defendant drives off in front of even more witnesses who know him, including the just arrived chief of the local volunteer fire department. Thus, once the defendant is hunted down and a blood alcohol analysis shows he’s, oh, twice the old limit (almost three times the new limit) two, count ‘em two drunk driving charges.
This was a three or four day jury trial. The defendant retained some out of town hot shot who papered the trial court with motions seeking to suppress everything but the color of the arresting officer’s eyes. Some of them even had merit. Eventually, the thing went to trial and the jury convicted on both counts in about 15 minutes.
Anyway, like I said, some of the arguments made by trial counsel had merit and the appellate attorney, also retained, parroted them. I think I’ve covered the law and the real facts fairly well, but my confidence is just a tiny bit shaken by the caviler attitude this panel displayed yesterday. At least today opposing counsel blew the deadline for preserving argument and hasn’t moved for special argument.
Once again I am the first case with anyone endorsed for argument. After the PJ makes his introductory remarks (identical to yesterday’s, as close as I can tell) I head up to the lectern and start my pitch. "May it please the court, . . ." at which point the PJ interrupts and says "Good to see you again, Mister DA. I just wanted to let you know we really appreciated your argument yesterday, it was very helpful. Now, is there anything special we should know about this case?"
OK, obviously, there is some sort of space/time warp on the expressway between my county and the big city! Right! Thanks to extensive training by the United States Army in the days of my misspent youth, I have a finely honed sense of when to quit while I’m ahead. "No, Your Honor, I think I’ve covered everything in my brief, so, unless there are any questions, I’ll let the court get on to the rest of the docket." No questions (thank God!) and I’m on my way to the parking lot. Some days you eat the bear, some days the bear eats you.
We don’t have opinions in either case, yet. I expect them this week or early next week. Any bets on which way they come out?
Sunday, September 19, 2004
Ignore The Agenda Behind the Curtain
Sometimes It's Hard To Tell If You're In Oz Or Through The Looking Glass
One of the most pleasant parts of going to the in between court, for long-term appellate practitioners, are the court officers. Blazer clad, retired state and city cops to a man (I think there are one or two women in the capital, but I don't know for sure, because I haven't been there in a couple of years) they run the screening point and perform the traditional court crier/bailiff duties in the courtrooms. The same guys have been working this particular office since I started coming down on a regular basis, about 12 years ago. Seeing as I'm down here once or twice a month, 10 or eleven months out of the year, it makes for an odd kind of serial acquaintance. The nice thing about being friendly with the court staff is you sometimes get a heads up that can save you a lot of trouble. Tuesday, for example.
Because I try to be in the courtroom well before the appointed time, I usually have half an hour or so to kill. Unlike some of my brothers and sisters who I see around the court, I do all my preparation the night before. I'm too keyed up the day of oral argument to wade through the briefs again, even the scintillating gems of legal reasoning I produce. So I chat up the court officer assigned to the bailiff station in the courtroom.
Like I said, these are the same four or five guys I'm been seeing for the last 12 years, so, while we may not be too clear on each other's names from time to time, we remember the broad stroke stuff - who retired from the city PD, who bought military time and retired early from the staties, who's a football fan, that sort of stuff. Today, we're talking about, of all things, how the judges react to the wildly varying styles of the attorneys who appeal in this court. How we got on this topic, I'm not sure. Something about working indoors on really great days led to being able to get away from the bosses every now and then, to the kind of bosses we had worked for, to the judges as bosses rather than judges.
Currently, I think six Judges have their primary offices in this particular state building. Those of the six the court officers are really concerned with keeping happy. But, because of the panel rotation, all the judges spend time in all the courtrooms/state buildings. So the court officers, over time, get to know all the judges in the same why the know me. Only a little better because the judges visit in two week blocks. So, anyway, we're chatting about the judges and how they are to work for, when I ask how this panel, which is in its second week, is doing. And receive a bit of information that really helped me in my argument. Actually, it may have kept me from alienating the whole panel.
According to the bailiff, this panel has had a hard time with a bunch of parental termination cases that it set on for oral argument. Which is interesting in itself. Most termination cases are put on the no-argument docket, more or less automatically. So, even though I was the only termination case on for today, the panel had heard a number of them last week. There appears to be a rumor that because of some problems with the assigned counsel system for termination cases in a couple of our larger counties, the Chief Justice has informally told the Chief Judge of the intermediate court to take a closer look at some of the termination cases, including getting the parties into court for oral argument if there is anything like an ineffective assistance of counsel claim being made on appeal. A light goes on. Now I have a good idea why this case is on the argument calendar. The bailiff goes on to tell me that last week's call had several termination cases, but none of the parties had preserved oral argument by either a timely filing or by motion.
This is one of my boss's hot buttons, probably because he was the Chief of Appeals for many years, before becoming the elected PA. Our goal is to always preserve argument by either a timely filing or by a motion for argument. In this case, opposing counsel prepared a cut and paste brief with an incomprehensible statement of facts, but, as an after thought, accused the trial attorney of not discovering an alleged fact that defense counsel on the separate criminal charges claimed to have discovered. He was well within the time limit for preserving oral argument. We, as a matter of routine, were also timely. So, here I was, with the first case before the panel with argument preserved on both sides, after the Chief Justice has indicated a little more examination of these matters was in order. Lovely. Maybe I should be rereading those briefs.
We are the first case on the call. After the presiding judge tells the crowed the usual "we've read your briefs, don't read them to us; go for your best points or any new authority, etc, etc" we move to our respective tables before the bar and worthy opposing counsel, representing the Respondent-Appellant mother, gives his pitch to the panel. This is not the same attorney who filed the original brief in the matter. The trial attorney from the separate criminal trial who has been retained by the family to prosecute the appeal. He essentially recaps the two briefs and attempts to expand the record by brining in the police reports and testimony from the criminal trial. For those of you who are not appellate attorneys, this is highly improper. The appellate court is supposed to review the record that the lower court relied on in making its decision. One blindingly obvious problem is that the defense called different witnesses at the criminal trial because the witnesses used in the termination proceeding were locked into their testimony and couldn't, conveniently, change that testimony to answer the issues raised by the family court judge in his opinion and order.
It seems clear now, although we were more than a little puzzled at the time, that counsel's goal at the criminal trial was two-fold, to get an acquittal if possible, but to also lay the ground work to have arguments on appeal to refute the family court's opinion. Wonderful. It shouldn't have worked. But this particular panel of judges seems to have swallowed it, hook, line, and sinker! The only, highly improper, question they ask is what was the result of the criminal trial. You see why this was improper, don't you? First, the burden of proof at a criminal trial is beyond a reasonable doubt, not clear evidence as it is in a termination case. Second, the criminal case was held months after the termination hearing. The family court judge had no way of knowing the result, nor even if we would continue the case once he terminated mom's parental rights. The fact that a jury acquitted her on the child endangerment charges has no bearing on the family court's decision. None.
So now, it's my turn. I tell them that I am surprised they would entertain the unauthorized expansion of the record and am about to actually make an oral motion to strike the offending material when the PJ interrupts me and asks if I don't think, given the gravity of the issue, that they should consider all the evidence. I have to admit, I was left speechless for several seconds. Then I remembered that all three of these judges were former felony court judges, in counties with separate family courts. Not a one of them had ever sit as a judge in a termination case, nor likely participated in one as an attorney -- it is, after all, a very specialized field in our bigger counties. Wonderful, again.
After I regain the power of speech, I attempt to make my theory of appellate review clear, without saying what I really feel, remembering the bailiff's tip that this panel has been having a frustrating time with termination cases this month, and not wanting to provoke a contempt citation. I don't recall being able to get more than a dozen words out an any point without being interrupted by one of the three with a questions or a sarcastic comment.
One of the judges asks about some fact that was alleged in the criminal case. I point out that the only problem was that the Respondent and her witnesses testified to just the opposite of this fact at the termination trial. But didn't the jury at the criminal trial rely on this fact to acquit. I throw up my hands. How do I know what the jury relied on? The record before the trial court, that is, the family court, was x, y, and z. After seeing what a poor result that had in the termination trial, counsel produced new witnesses to testify to a, b, and c at the criminal trial. Whoa! Dead silence from the bench as they digest the implications of that. We go on to a different issue.
The PJ asks about how long DSS worked with mom before bringing the petition to terminate. Several months longer than the statute requires, I tell him. Well, how long is that? Thirty months, I tell him. Does that seem like a reasonable time to me? He misses the point, and exposes his own ignorance of the law, and his law clerk's, too, for that matter - under the massive revision to our child welfare laws in the late 1990s, DSS has far less leeway than they used to in dragging abuse and neglect cases out for years and years and years. If they haven't reunited the parent(s) and the child(ren) within 24 months of the initial court hearing taking temporary custody, they have to bring the petition and let the family court decided if they get more time. In this case they received one extension from the hearing officer. When they took the matter to the family court judge for review, in addition to finding the extension not justified on the record, he explicitly found that even considering what had taken place during the extension, there was no reasonable likelihood of putting the family back together. We go back and forth on my opinion of this, that, and the other thing, for awhile. I mean, things that have been decided by the legislature after literally year of commissions, reports, studies, hearings, and debate. I begin to wonder if somewhere on the drive down I haven't sipped through a wormhole to an alternate reality where the massive reforms of the 1990s never took place.
The crowning bit of surreality comes when one of the other judges asks me, in all seriousness, if I don't think a baby (the child in question was less than a year old at the time of the termination) belongs with its mother, rather than with strangers in foster care? I mean, how do you answer that question? Of course I think babies belong with their mothers, unless, of course, mom's conduct seems to be aimed at killing the baby - what we alleged at both trials, and proved to the termination standard in the family court.
At this point, wonder of wonders, my 30 minutes were up. Thank God. Opposing counsel didn't bother with rebuttal, his black robed co-counsel having already taken care of that.
This is probably the worst manhandling I have ever had by an appellate court. I've argues before out federal circuit, our state supreme court, and, I think, every judge currently on the intermediate court, and I can't ever recall the law being so completely ignored and the appellant being allowed to pretty much change history. Maybe this happens in civil cases, but I've had to sit though a fair number of them, now that we don't have pure criminal dockets anymore, and I don't think so.
On the drive back to the office, one though keeps running through my mind. I've got this same panel tomorrow on a felony drunk driving case. Wonderful!
One of the most pleasant parts of going to the in between court, for long-term appellate practitioners, are the court officers. Blazer clad, retired state and city cops to a man (I think there are one or two women in the capital, but I don't know for sure, because I haven't been there in a couple of years) they run the screening point and perform the traditional court crier/bailiff duties in the courtrooms. The same guys have been working this particular office since I started coming down on a regular basis, about 12 years ago. Seeing as I'm down here once or twice a month, 10 or eleven months out of the year, it makes for an odd kind of serial acquaintance. The nice thing about being friendly with the court staff is you sometimes get a heads up that can save you a lot of trouble. Tuesday, for example.
Because I try to be in the courtroom well before the appointed time, I usually have half an hour or so to kill. Unlike some of my brothers and sisters who I see around the court, I do all my preparation the night before. I'm too keyed up the day of oral argument to wade through the briefs again, even the scintillating gems of legal reasoning I produce. So I chat up the court officer assigned to the bailiff station in the courtroom.
Like I said, these are the same four or five guys I'm been seeing for the last 12 years, so, while we may not be too clear on each other's names from time to time, we remember the broad stroke stuff - who retired from the city PD, who bought military time and retired early from the staties, who's a football fan, that sort of stuff. Today, we're talking about, of all things, how the judges react to the wildly varying styles of the attorneys who appeal in this court. How we got on this topic, I'm not sure. Something about working indoors on really great days led to being able to get away from the bosses every now and then, to the kind of bosses we had worked for, to the judges as bosses rather than judges.
Currently, I think six Judges have their primary offices in this particular state building. Those of the six the court officers are really concerned with keeping happy. But, because of the panel rotation, all the judges spend time in all the courtrooms/state buildings. So the court officers, over time, get to know all the judges in the same why the know me. Only a little better because the judges visit in two week blocks. So, anyway, we're chatting about the judges and how they are to work for, when I ask how this panel, which is in its second week, is doing. And receive a bit of information that really helped me in my argument. Actually, it may have kept me from alienating the whole panel.
According to the bailiff, this panel has had a hard time with a bunch of parental termination cases that it set on for oral argument. Which is interesting in itself. Most termination cases are put on the no-argument docket, more or less automatically. So, even though I was the only termination case on for today, the panel had heard a number of them last week. There appears to be a rumor that because of some problems with the assigned counsel system for termination cases in a couple of our larger counties, the Chief Justice has informally told the Chief Judge of the intermediate court to take a closer look at some of the termination cases, including getting the parties into court for oral argument if there is anything like an ineffective assistance of counsel claim being made on appeal. A light goes on. Now I have a good idea why this case is on the argument calendar. The bailiff goes on to tell me that last week's call had several termination cases, but none of the parties had preserved oral argument by either a timely filing or by motion.
This is one of my boss's hot buttons, probably because he was the Chief of Appeals for many years, before becoming the elected PA. Our goal is to always preserve argument by either a timely filing or by a motion for argument. In this case, opposing counsel prepared a cut and paste brief with an incomprehensible statement of facts, but, as an after thought, accused the trial attorney of not discovering an alleged fact that defense counsel on the separate criminal charges claimed to have discovered. He was well within the time limit for preserving oral argument. We, as a matter of routine, were also timely. So, here I was, with the first case before the panel with argument preserved on both sides, after the Chief Justice has indicated a little more examination of these matters was in order. Lovely. Maybe I should be rereading those briefs.
We are the first case on the call. After the presiding judge tells the crowed the usual "we've read your briefs, don't read them to us; go for your best points or any new authority, etc, etc" we move to our respective tables before the bar and worthy opposing counsel, representing the Respondent-Appellant mother, gives his pitch to the panel. This is not the same attorney who filed the original brief in the matter. The trial attorney from the separate criminal trial who has been retained by the family to prosecute the appeal. He essentially recaps the two briefs and attempts to expand the record by brining in the police reports and testimony from the criminal trial. For those of you who are not appellate attorneys, this is highly improper. The appellate court is supposed to review the record that the lower court relied on in making its decision. One blindingly obvious problem is that the defense called different witnesses at the criminal trial because the witnesses used in the termination proceeding were locked into their testimony and couldn't, conveniently, change that testimony to answer the issues raised by the family court judge in his opinion and order.
It seems clear now, although we were more than a little puzzled at the time, that counsel's goal at the criminal trial was two-fold, to get an acquittal if possible, but to also lay the ground work to have arguments on appeal to refute the family court's opinion. Wonderful. It shouldn't have worked. But this particular panel of judges seems to have swallowed it, hook, line, and sinker! The only, highly improper, question they ask is what was the result of the criminal trial. You see why this was improper, don't you? First, the burden of proof at a criminal trial is beyond a reasonable doubt, not clear evidence as it is in a termination case. Second, the criminal case was held months after the termination hearing. The family court judge had no way of knowing the result, nor even if we would continue the case once he terminated mom's parental rights. The fact that a jury acquitted her on the child endangerment charges has no bearing on the family court's decision. None.
So now, it's my turn. I tell them that I am surprised they would entertain the unauthorized expansion of the record and am about to actually make an oral motion to strike the offending material when the PJ interrupts me and asks if I don't think, given the gravity of the issue, that they should consider all the evidence. I have to admit, I was left speechless for several seconds. Then I remembered that all three of these judges were former felony court judges, in counties with separate family courts. Not a one of them had ever sit as a judge in a termination case, nor likely participated in one as an attorney -- it is, after all, a very specialized field in our bigger counties. Wonderful, again.
After I regain the power of speech, I attempt to make my theory of appellate review clear, without saying what I really feel, remembering the bailiff's tip that this panel has been having a frustrating time with termination cases this month, and not wanting to provoke a contempt citation. I don't recall being able to get more than a dozen words out an any point without being interrupted by one of the three with a questions or a sarcastic comment.
One of the judges asks about some fact that was alleged in the criminal case. I point out that the only problem was that the Respondent and her witnesses testified to just the opposite of this fact at the termination trial. But didn't the jury at the criminal trial rely on this fact to acquit. I throw up my hands. How do I know what the jury relied on? The record before the trial court, that is, the family court, was x, y, and z. After seeing what a poor result that had in the termination trial, counsel produced new witnesses to testify to a, b, and c at the criminal trial. Whoa! Dead silence from the bench as they digest the implications of that. We go on to a different issue.
The PJ asks about how long DSS worked with mom before bringing the petition to terminate. Several months longer than the statute requires, I tell him. Well, how long is that? Thirty months, I tell him. Does that seem like a reasonable time to me? He misses the point, and exposes his own ignorance of the law, and his law clerk's, too, for that matter - under the massive revision to our child welfare laws in the late 1990s, DSS has far less leeway than they used to in dragging abuse and neglect cases out for years and years and years. If they haven't reunited the parent(s) and the child(ren) within 24 months of the initial court hearing taking temporary custody, they have to bring the petition and let the family court decided if they get more time. In this case they received one extension from the hearing officer. When they took the matter to the family court judge for review, in addition to finding the extension not justified on the record, he explicitly found that even considering what had taken place during the extension, there was no reasonable likelihood of putting the family back together. We go back and forth on my opinion of this, that, and the other thing, for awhile. I mean, things that have been decided by the legislature after literally year of commissions, reports, studies, hearings, and debate. I begin to wonder if somewhere on the drive down I haven't sipped through a wormhole to an alternate reality where the massive reforms of the 1990s never took place.
The crowning bit of surreality comes when one of the other judges asks me, in all seriousness, if I don't think a baby (the child in question was less than a year old at the time of the termination) belongs with its mother, rather than with strangers in foster care? I mean, how do you answer that question? Of course I think babies belong with their mothers, unless, of course, mom's conduct seems to be aimed at killing the baby - what we alleged at both trials, and proved to the termination standard in the family court.
At this point, wonder of wonders, my 30 minutes were up. Thank God. Opposing counsel didn't bother with rebuttal, his black robed co-counsel having already taken care of that.
This is probably the worst manhandling I have ever had by an appellate court. I've argues before out federal circuit, our state supreme court, and, I think, every judge currently on the intermediate court, and I can't ever recall the law being so completely ignored and the appellant being allowed to pretty much change history. Maybe this happens in civil cases, but I've had to sit though a fair number of them, now that we don't have pure criminal dockets anymore, and I don't think so.
On the drive back to the office, one though keeps running through my mind. I've got this same panel tomorrow on a felony drunk driving case. Wonderful!
Wednesday, September 15, 2004
Off To The Emerald City
But The Wizard Seems To Be Out
Well, this has been a great week, so far. Sick on Monday, but that's another story. Today and yesterday were visits to the big city to do oral argument in our intermediate appellate court. Same panel of judges, one case on each day. You'd think they'd find someway to try and match attorneys to cases so we aren't hit with this sort of thing. Ah, well, I've had the other problem, too. That is, two panels running and I've got cases on same call in both of them. Happily, the courtrooms are only about 50 yards apart and the court officers, all retired cops, are very helpful in getting you from one to the other, and keeping the judges calm.
Anyway, it's not all that uncommon to have argument on two different days. The court sets arguments on the first and second Tuesday and Wednesday of the month with two calls each day. The first starting a 9:00 a.m. and the second nominally at noon. That one really begins after the panel takes its morning break, usually 20 minutes or so between 11:30 and 12:30, depending on how verbose the parties in the first call have been. In theory, each endorsed for argument party gets half an hour if there are only two parties, less time the more co-/cross/third-parties there are. If only one side has argument, they get 15 minutes.
Because of the shear size of this Midwestern wilderness, we have several divisions of our intermediate appellate court. While they may not pay much attention to what they've done to you on the actual day of your call, they do keep you close to home, if they can. I never argue in the courtrooms that are actually for the district my county is in -- to far away. Easily twice as far in time, even more in distance, than the state building in the big city. So, a couple of days a month I get out of the office for a little field trip to a real downtown in a real metro area.
Did I mention my law school is within nice day walking distance of the court? Well, it is. And how big an appeals geek am I? Well, sometimes, when there is nothing pressing back at the office, I'll spend a hour or two at the law library. It's amazing what you can find in the collections of a major law library. Ever hear of "The Green Bag"? My alma mater has an almost complete run of the original magazine, bound in yearly volumes. A window into the practice and live of the law from the 1890s to the 19-teens. I discovered them one rainy day in first year while on one of those sadistic treasure hunts legal research and writing instructors are so fond of. It made the silly TH worthwhile.
Anyway, two cases this week, one on each day of the call. Tuesday's was a termination of parental rights appeal. Which was a little odd. Those are almost always decided by summery panels because there is almost nothing to argue about. Of course, there is, in the abstract. But it's always the same. The judge committed clear error when he found one of the statutory grounds for termination. If the judge was correct on the grounds, then the judge committed clear error in finding that the best interests of the child required termination. So why did this one draw a oral argument shot?
Going into the argument, all I could think of was that, procedurally, the case was a little unusual in that it was initially heard by a family court hearing officer who had denied the DSS petition to terminate. Our assigned APA had requested a de novo review by the judge assigned to juvenile cases. Some what unexpectedly, he won and the judge ordered mom's rights terminated.
More tomorrow. I'm going to get this posted so you all don't think I've died, or something.
Well, this has been a great week, so far. Sick on Monday, but that's another story. Today and yesterday were visits to the big city to do oral argument in our intermediate appellate court. Same panel of judges, one case on each day. You'd think they'd find someway to try and match attorneys to cases so we aren't hit with this sort of thing. Ah, well, I've had the other problem, too. That is, two panels running and I've got cases on same call in both of them. Happily, the courtrooms are only about 50 yards apart and the court officers, all retired cops, are very helpful in getting you from one to the other, and keeping the judges calm.
Anyway, it's not all that uncommon to have argument on two different days. The court sets arguments on the first and second Tuesday and Wednesday of the month with two calls each day. The first starting a 9:00 a.m. and the second nominally at noon. That one really begins after the panel takes its morning break, usually 20 minutes or so between 11:30 and 12:30, depending on how verbose the parties in the first call have been. In theory, each endorsed for argument party gets half an hour if there are only two parties, less time the more co-/cross/third-parties there are. If only one side has argument, they get 15 minutes.
Because of the shear size of this Midwestern wilderness, we have several divisions of our intermediate appellate court. While they may not pay much attention to what they've done to you on the actual day of your call, they do keep you close to home, if they can. I never argue in the courtrooms that are actually for the district my county is in -- to far away. Easily twice as far in time, even more in distance, than the state building in the big city. So, a couple of days a month I get out of the office for a little field trip to a real downtown in a real metro area.
Did I mention my law school is within nice day walking distance of the court? Well, it is. And how big an appeals geek am I? Well, sometimes, when there is nothing pressing back at the office, I'll spend a hour or two at the law library. It's amazing what you can find in the collections of a major law library. Ever hear of "The Green Bag"? My alma mater has an almost complete run of the original magazine, bound in yearly volumes. A window into the practice and live of the law from the 1890s to the 19-teens. I discovered them one rainy day in first year while on one of those sadistic treasure hunts legal research and writing instructors are so fond of. It made the silly TH worthwhile.
Anyway, two cases this week, one on each day of the call. Tuesday's was a termination of parental rights appeal. Which was a little odd. Those are almost always decided by summery panels because there is almost nothing to argue about. Of course, there is, in the abstract. But it's always the same. The judge committed clear error when he found one of the statutory grounds for termination. If the judge was correct on the grounds, then the judge committed clear error in finding that the best interests of the child required termination. So why did this one draw a oral argument shot?
Going into the argument, all I could think of was that, procedurally, the case was a little unusual in that it was initially heard by a family court hearing officer who had denied the DSS petition to terminate. Our assigned APA had requested a de novo review by the judge assigned to juvenile cases. Some what unexpectedly, he won and the judge ordered mom's rights terminated.
More tomorrow. I'm going to get this posted so you all don't think I've died, or something.
Sunday, September 12, 2004
Mister DA Kicks Back - Part II
Now something that just irritates me. Not a lot, but more than I like. And that's
The Bush Memos
When I first read about these in my local papers and on the web, the day after the 60 Minutes II report, I didn't think much about it, one way or the other. You see, I'm a veteran of the Army Reserve of about the same era, and the one thing I know for a fact is that neither Dan Rather, nor Terry McAuliffe, nor any of the other reporters or politicos working this story, at least the couple of dozen that I have seen or heard, have the faintest idea how the Guard and Reserve work today let alone thirty to thirty-five years ago. Clueless, each and every one of them. Nor do they have much idea how the active military works. So, non-story to me.
Then the hoo-rah about the provenance and the authenticity of the memos begin to intrude on a number of news sites and weblogs I monitor. So, I cast around and found the .pdf files of a couple of the memos. Well, heck, didn't look like any military memo I ever saw. Let me explain bit about that.
I was commissioned from ROTC in June of 1971 and entered active duty in March of 1972. I was a combat arms officer and that delay in my initial entry should give you some idea of what a glut on the market combat arms lieutenants were at that time. It got worse, from my point of view. About half way through my branch basic, my orders were changed from a two year active duty (AD) tour to a 90 day active duty for training (ADT) assignment. That sucked, for a number of reasons.
First off, I really wanted to do the full two years and maybe more. I was so gung-ho, 22 years old, invincible and sure I was going to be the next Omar Bradley or George Patton, that I'm not sure who that guy was. Second, on a more practical level, because I had expected to do at least two years AD, I had no real civilian career plans. Third, because I wasn't going to do a full AD tour, my active reserve obligation was something like six years. And by active reserve I mean monthly drills and two-week annual training for six years! And trust me, we (the couple of dozen of us in the class that got hit with this) knew damn well that there were many, many officer vacancies at the O-1 to O-3 level in the active Army Reserve. In those days the rule was something like you could be required to drill some insane distance from your home - I don't recall exactly, but something like 50 to 100 miles comes to mind. Anyway, I lived in a major metro area that, according to the counselor they had explaining all this to us, was crawling with Army Reserve and Army National Guard units, all eager to welcome us with open arms.
Anyway, to make an incredibly long post as short as I can, I mustered out and found a unit. I also found my degree field, Communications Arts, was flooded with people with more experience, willing to work cheap. So I ended up taking a civilian technician job with a reserve unit about 50 miles from home. Unlike the National Guard, the Army Reserve didn't link military grade with civilian grade. I was a GS-07 Administrative and Supply Technician-Recruiter.
In the unit I worked for, I was the de facto Battalion S-1(Adjutant, that is, the chief paper pusher) although nominally assigned to a company as a Platoon Leader. During the week, I kept the paper work flowing, during drills I supervised the training and work product of the battalion and company clerks. I gained an intimate familiarity with the mixed bag of manual Royal, Smith-Corona, Underwood, and electric IBMs we used. Trust me on this. There was no money to spend on fancy cold typesetting IBM Composers. For that matter, I don't think the unit ever got a Selectric, ball type machine until sometime in the early 80s.
For the first several years I was in the unit, we cut the annual training orders on mimeograph stencils and sent them to brigade to be run off. We typed letters, memos, individual orders, you name it, on manual typewriters (we had one electric per battalion, mostly to cut the mimeographs stencils) using white and yellow manifold paper for copies. The other thing I distinctly remember, and I can't say whether the Air Force and Air Guard were the same way or not, was the paper was smaller than regular letter size in the civilian world. I seem to recall the letterhead size being 8" x 10.5" that is, half an inch smaller the the civilian standard. Some genius of procurement no doubt calculated just how much this would save in paper costs.
When I looked at the pdf files of the alleged memos, I had a hard time believing this wasn't a joke. During my 12 years with the active reserve, four of them as a full time employee, I handled hundreds of these sorts of things. I created hundreds for the battalion staff, my fellow company commanders, and myself to sign and put in personnel files or send up or down the chain-of-command. These things don't look right and the over all feel, as much as a .pdf on the screen lets you feel anything, is wrong. Enough.
The thing that irritates me is no one seems to have thought to find someone like me from the Texas ANG of that era. If someone produced a supposed memo or order from my brigade, I would think, from a forensic standpoint, that someone much like me would be the person you'd want to talk to, at least to begin with.
OK. So that's how my weekend went. A little trip down memory lane. I hadn't thought about those days for a long time. Now I'm going to go down and watch episode 5 of Alias, season 3. Later.
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.
And it's going up on Sunday, too!
Spent yesterday decompressing from the week, more or less. Unless I'm the on-call APA, I try to avoid going into the office on Saturday or Sunday. Not always as easy as it might seem. My job has a pretty steady flow of things-to-be-done that have immutable deadlines. My brothers and sisters on the trial staff, of course, have deadlines, too. But by and large, our trial courts (well, except that one) are flexible on things like responsive motions. So, for that matter, is the local defense bar. Sort of a "we're all trial geeks here, together" attitude. The various courts of appeal are not. Even when the felony court sits as an appellate court to the misdemeanor court, the court rule deadlines are the deadlines, like it or lump it. Which is a long winded way of saying, once the swarm of interns return to law school, I either spend a couple of evenings at the office or a day or two on the weekend. We really need another APA doing appeals, at least part time, but the county board is looking to cut 4+ million from the 2005 budget, so we're doing well to stay where we are, in fiscal terms, without drawing attention by asking for more bodies.
So, what did I do yesterday? Well, as number two son had a football game Friday night, I had to tape my Friday night required viewing. By the time I got the video camera back to my ex, set up it up to view the footage of our pride and joy in his first appearance of the season, and got myself home, it was too late to watch what I'd recorded. Not if I wanted to avoid the dread slept-three-hours-in-the-recliner neck/back. So I worked the online class I teach for a bit and went to bed.
Saturday, after the usual make and mend session with the vacuum cleaner and the scrubbing bubbles, I made a bowl of popcorn and watched my shows. (God, I'm channeling my grandmother! My shows, like I've got a couple of points or something.) So what constitutes must see TV for a hard-core prosecutor on a Friday night/Saturday morning?
For now, well, until next week when the "summer finales" run, it's Stargate: SG-1 and Stargate Atlantis. Yeah, SF geek here, reporting for duty. I "discovered" Stargate: SG-1 by accident. I'd seen the movie, with Kurt Russell, and thought, good concept, mediocre execution. Then, oh, sometime in late '02 or early '03, in the winter, anyway, I came across the first season of the Showtime 'SG-1 on DVD for something like $10. So, $10 is pocket change, right? And I was bored out of my mind so. . . I was hooked. Happy days, indeed. Seeing as seasons 2, 3, and 4 were already on DVD, and season 5 was due out, real soon, and season 6 was underway on the SciFi channel, I almost ODd on Amanda Tapping -- I mean Stargate. Right, Richard Dean Anderson, Chris Judge, Michael Shanks, and how about that Don S. Davis!? Can that guy play a general or what? Anyway, that's my Fridays, except for high school football season.
Once the new seasons get rolling, things will get interesting. Let's see - got the VCR, got the ATI All-In-Wonder capture card on the computer and the cable drop for the broadband conveniently close to hand -- humm - Joan of Arcadia, Enterprise, Stargate (two), and whatever the WB comes up with for its Friday lineup. Rats, looks like I may have to buy that Tivo after all. Well, it's only money.
Toward the late afternoon, I managed to drag myself to the store for provisions, then made a Best Buy run to check out the new DVDs. I am a DVD junkie. TV shows, in particular. I admit it, and I think I have it under control, now. I limit myself to two movies or one TV set per payday. Yesterday I picked up Alias, Season 3. And that's what I've been doing today. Well, that and doing the weekly grades for my online students. It's my own carrot and stick approach. I do one grading chore, I get to watch one episode.
I've just finished the bulk of the grading chores, and thought I'd ramble on here, a bit. Some other things, not really work related except in the most tenuous way, that I've been thinking about:
The Kobe Bryant Case
Only because a number of my students, knowing what I do for a living, asked how the heck can this happen. All of you reading this who are in the biz, regardless of side, know the answer, more or less. I don't make it a habit of second guessing prosecutors in other counties, let alone other states, but the court out there. . . I've heard at least one of our judges refer to it as Keystone Kourt, a phrase that was picked up by a number of the APAs. You know, we get lawyers from the "big city" who come here and act like they expect to find Pa Kettle on the bench and Li'l Abner running the prosecutor's office. Indeed, one of my favorite judges, now retired, once inquired of a particularly obnoxious specimen "Counsel, where do you think you are, Dogpatch? It doesn't matter. Here in my court we use the same rules of evidence as the rest of the State. I assume they use them in your county, too." Much innocent fun can be had with these guys. But, gee willikers, how many times did that court manage to leak information? Dahlia Lithwick over at Slate has what strikes me as the best summary of what she calls "an epic debacle" that I've come across. Of particular interest is her commentary on the district judge.
Was it all District Judge Terry Ruckriegle's fault, then, for allowing his staff to leak—on four separate occasions—humiliating details as well as the name of an accuser who had already endured a year of abuse and death threats? No. His was a tiny little courthouse, staffed by honest guppies and bunnies, overmatched by the wolves of cable television.You really need to read the whole thing. I'm never quite sure with Ms. Lithwick, is she being overly cute, or just sarcastic as Hell? Click here to judge for yourself.
Tuesday, September 07, 2004
Friday In A Week In The Life Of An APA
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.
Well, as they say, TGIF! Summer Friday's are normally pretty slow around the courthouse. Lots of people take Fridays and/or Mondays off in July and August to maximize their use of vacation time. Or to get a jump on a longer vacation. Friday is also catch-all and catch-up day in the arraignment courts, which means APAs out of the office, most of the day. On rotation one unlucky junior staffer gets to cover the one located in the courthouse. This is where our least favorite judge sits, A man who can take a two hour docket and stretch it to cover most of the day. This is also the only judge on earth (or at least my corner of it) who will start a jury trial on a Friday.
Now, most misdemeanor/ordinance cases will take less than a day of courtroom time. Even the drunk driving cases, where there are legitimate technical evidence and police procedure questions to be raised, take less than a day. Heck, voir dire on a typical misdemeanor may take longer than both the cases-in-chief combined. In a typical, contested misdemeanor jury trial, the parties have rested by the time noon rolls around. Closing argument and instructions after lunch, and the jury has the case by 2:00 p.m. or so, giving them almost three hours to come to a verdict. But that estimate of time contemplates getting started about 9:00 a.m., not spending three hours doing sentencings, show-cause hearings, guilty pleas, and pre-trial hearings left over from earlier in the week before even starting jury selection.
Of course, it's our fault, you understand. If those darn prosecutors would just quit authorizing so many cases. . . . Well, God would return to his heaven and all would be right with the world! Sorry if I sound a bit peevish. The other arraignment judge just declined to bind a case over as attempted murder after the preliminary hearing. He said something like,"If that's what you wanted, why wasn't it authorized that way? Bound over as charged!" Sigh. Sometimes the facts in the police report, which is all the warrant attorney has to go on, don't quite spell out all the tiny little details. Sometimes, and I know this is going to be a shock to some of you, the officer rushes the report! Or, sometimes the clerk typist doing the compilation/transcription of the raw field reports misses a page or a Dictaphone tape! And then everyone gets a surprise when the preliminary hearing isn't waived and we put on the witnesses.
This particular case was a self-help attempt to collect a drug debt. Already, your eyes are starting to glaze over -- who gives a tinker's dam about shots fired between a bunch of druggies? On the night in question, a car with two or three people inside cruised the victim's street a number of time, apparently look for the right house. Then it made a final pass with one person sitting in the passenger side window, leaning across the roof of the car. When the car was directly across from the target house, a series of shots were fired, into the front of the house, from an de-militarized AK-47. The car sped away, into the night.
After some really fine police work (I'm dead serious, here.) Three suspects were arrested. Two of the three couldn't wait to confess. One actually admitted to being the shooter! The one these two pegged as the driver/mastermind lawyered up within seconds of his arrest. Fine. The case could be made against all three of them for a charge of felony discharge of a firearm. At the time the warrant was authorized, the investigating officers thought there was no one at home when the shooting occurred.
As a rule, these probable cause hearings are held within two weeks of a defendant's first appearance. In that time, the police report is finalized (if it wasn't already). Most ofter, this means supplemental reports from officers who were only slightly involved in the investigation or arrest are transcribed and placed in official form. It this case, the one guy who was at home, watching our suspects cruise up and down the street, from the front porch, took off (can we blame him?) after dodging several bullets and didn't come back to town until almost a week later. But come back he did. And, seeing as he appears to have nothing to do with the drug-deal-gone-bad, he was willing to testify! Testified that he thought the shooter saw him on the porch just before he opened fire!
At the close of the proofs, our APA moved to bind two of the three boyos over on attempted murder as well as the firearms charges. The judge says, "I don't think they had the intent to kill anyone."
Well, things vary from jurisdiction to jurisdiction, but around here, at a preliminary hearing on a felony case, the standard to set the case over to the felony court is probable cause as to the crime and the identity of the criminal. Questions of fact are, as a general rule, to be left for the the trier-of-fact, be it judge or jury, in the higher court. Intent is almost always a question of fact. This is not an uncommon problem. Some examining magistrates have a hard time with letting the great mass of citizens make these decisions. A fact that has always puzzled me. Sigh.
In practical terms, because the case was sent up, following a full hearing, our remedy is to move the felony court to amend the charges. The standard of review on these sorts of motions (and the defense equivalent, the motion to dismiss for insufficient evidence) is abuse of discretion. Anyone with any appellate experience at all will tell you that this is a difficult standard to meet. Well, if the magistrate is wrong on a question of law, then that's abuse of discretion, more or less per se. That's the argument I anticipate making. As long as there is some, credible evidence of intent, the ultimate question is for the jury. We'll see whether the evidence supports an argument that it was credible and sufficient to put the matter in issue when I get the transcript.
After lunch, I spend the rest of the day trying to clean up all the little stuff that tends to pile up while I deal with the more interesting or pressing issues. Two more Freedom of Information requests. For some reason an insurance company thinks the best place to get a copy of the Sheriff's report is our office. Sorry, no. Police reports in our files are marked up by, first, the warrant attorney, and then by the trial attorney. This tends to turn them into attorney work product, which is exempt form disclosure under the act. They also have the contact information for victims and witnesses, which is also exempt. The Sheriff, on the other hand, maintains a properly redacted, free from comment copy of all the reports that have been forwarded to us for review. So, I spend more time advising these folks that if they want a copy of the Sheriff's report, their best bet is the Sheriff.
I finish the day by setting up the appeal files for the felony-murder that was returned to us by the intermediate appellate court and the shooting case set out above. Monday I'll get started on shaping the application to our Supreme Court on the one and the motion to amend on the other. And maybe I'll get a chance to work on the Blakely memo, again.
Leaving the courthouse on Friday is always a little different, especially during the summer months. Almost all of the prosecutor's staff, attorney and support staff alike, stay until after the official quitting time. Not long, after, for the most part, but 10-20 minutes on average, but long enough that the rest of the building, except for the custodial crew, are in their cars and out of the parking lot by the time we start to trickle out. On Fridays, this odd discrepancy is even more pronounced. Sometimes I reach the parking lot and it looks like the only cars left are prosecutor's staff and the second shift Sheriff's Deputies who arrive half-an-hour before the official quiting time. More on this later.
Saturday, September 04, 2004
Thursday In A Week In The Life Of An APA
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.
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.
Monday, August 23, 2004
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!
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!
Friday, August 20, 2004
Tuesday In a Week In The Life of An APA
Tuesday
Maybe I need to cover more ground with fewer words? It's taking me longer to post this week than it took to live it!
Tuesday is high volume day in our courts - preliminary hearings and bench trials and formal hearings (traffic tickets) in misdemeanor court, jury trials in felony court, and pretrial hearings in juvenile court. Our courts have never quite twigged to the fact that it's not 1960 any longer. That being the last time anyone has any recollection of the courts' docketing and general conduct of business being changed. That's not quite correct. In 1960 there was no misdemeanor court, only a couple of dozen justices of the peace and the felony court. That's the last time the felony court changed anything. Misdemeanor court has had its scheduling and order of events changed so often in the past eight years, only a few of us remember how efficiently, how orderly it used to run.
Did I mention that our least favorite misdemeanor court judge is also the chief judge of the three judge court? Well, our Supreme Court appoints the chief judges for all the multi-judge lower courts. The immediate past chief judge got the appointment as a political favor eight years ago and proceeded to demonstrate why his law practice partners were so happy to see him ascend to the bench. After six years, he pretty much wore himself out and declined to be reappointed. As is pretty much traditional, when no favors are being called in, the supremes appointed the judge he recommended as his successor in the job. So, not only is our newest judge totally unqualified for the job, both by experience and temperament, now he's running a court with a (roughly) $2,000,000 annual budget with about 25 employees with four departments in two locations after spending more than 25 years in private practice with with an annual cash flow of about $200,000 and never more than 1.5 employees at any given time.
The problems may not be obvious to those of you who are not lawyers, so let me explain, briefly. The judge does not have a clue as to how a criminal defense attorney or a prosecutor, for that matter, works. Reviewing the record of the dismissal case I talked about in the Monday rant, I find the amazing statement, as the judge attempts to impose attorney fees on my office for the dismissed case - knowing full well it will be reauthorized as a felony- because he doesn't understand why the defendant should be held to his contract with the court to reimburse his appointed attorney fees when the attorney never had a chance to defend him! the illogic is stunning and is as good a demonstration of the problem as can be. Essentially, he doesn't believe the defendant received any benefit from the representation because there will be no trial on the misdemeanor charge. Really. We may very well not reauthorize the domestic violence count - a significant fact given the disabilities a DV conviction can cause - based in large part on defense counsel's maneuvering.
He is also at a loss as to how plea bargaining works. Hell, he doesn't understand probable cause or how a warrant can be issued on information and belief. Having no experience in dealing with criminal defendants as clients (or routine civil litigants, either) he has no idea of how the attorney-client relationship works in those sorts of cases. He also lacks any real idea of the value of other people's time.
For me, this means a lot of my day gets spent listening to APAs vent about silly rulings, failures to have cases bound over for trial in felony court, personal attacks on the PA and the entire staff, etc. etc. My work load has increased quite a bit over the past two years - more appeals of this judge's rulings than the other two combined. What's significant is the number of times we are successful. The usual standard of review in the typical bind over or evidence decision is abuse of discretion. In practice, what this means is it is very hard to get a ruling reversed. The decision has to be so obviously wrong that no reasonable jurist would agree with it. Before our least favorite judge began his reign of cluelessness, I'd win maybe one out of four or five of these appeals. It's now running about 50-50.
Of course, these appeals don't take as much time as responding to a full blown appeal of a jury verdict, or an interlocutory appeal to the court of appeals, but they do take some appreciable amount of my time and my secretary's time. During the summer, interns handle a lot of the research and writing of these appeals. But when they return to school and to a day or two a week schedule, the time limits imposed on these actions require my full participation.
Maybe I need to cover more ground with fewer words? It's taking me longer to post this week than it took to live it!
Tuesday is high volume day in our courts - preliminary hearings and bench trials and formal hearings (traffic tickets) in misdemeanor court, jury trials in felony court, and pretrial hearings in juvenile court. Our courts have never quite twigged to the fact that it's not 1960 any longer. That being the last time anyone has any recollection of the courts' docketing and general conduct of business being changed. That's not quite correct. In 1960 there was no misdemeanor court, only a couple of dozen justices of the peace and the felony court. That's the last time the felony court changed anything. Misdemeanor court has had its scheduling and order of events changed so often in the past eight years, only a few of us remember how efficiently, how orderly it used to run.
Did I mention that our least favorite misdemeanor court judge is also the chief judge of the three judge court? Well, our Supreme Court appoints the chief judges for all the multi-judge lower courts. The immediate past chief judge got the appointment as a political favor eight years ago and proceeded to demonstrate why his law practice partners were so happy to see him ascend to the bench. After six years, he pretty much wore himself out and declined to be reappointed. As is pretty much traditional, when no favors are being called in, the supremes appointed the judge he recommended as his successor in the job. So, not only is our newest judge totally unqualified for the job, both by experience and temperament, now he's running a court with a (roughly) $2,000,000 annual budget with about 25 employees with four departments in two locations after spending more than 25 years in private practice with with an annual cash flow of about $200,000 and never more than 1.5 employees at any given time.
The problems may not be obvious to those of you who are not lawyers, so let me explain, briefly. The judge does not have a clue as to how a criminal defense attorney or a prosecutor, for that matter, works. Reviewing the record of the dismissal case I talked about in the Monday rant, I find the amazing statement, as the judge attempts to impose attorney fees on my office for the dismissed case - knowing full well it will be reauthorized as a felony- because he doesn't understand why the defendant should be held to his contract with the court to reimburse his appointed attorney fees when the attorney never had a chance to defend him! the illogic is stunning and is as good a demonstration of the problem as can be. Essentially, he doesn't believe the defendant received any benefit from the representation because there will be no trial on the misdemeanor charge. Really. We may very well not reauthorize the domestic violence count - a significant fact given the disabilities a DV conviction can cause - based in large part on defense counsel's maneuvering.
He is also at a loss as to how plea bargaining works. Hell, he doesn't understand probable cause or how a warrant can be issued on information and belief. Having no experience in dealing with criminal defendants as clients (or routine civil litigants, either) he has no idea of how the attorney-client relationship works in those sorts of cases. He also lacks any real idea of the value of other people's time.
For me, this means a lot of my day gets spent listening to APAs vent about silly rulings, failures to have cases bound over for trial in felony court, personal attacks on the PA and the entire staff, etc. etc. My work load has increased quite a bit over the past two years - more appeals of this judge's rulings than the other two combined. What's significant is the number of times we are successful. The usual standard of review in the typical bind over or evidence decision is abuse of discretion. In practice, what this means is it is very hard to get a ruling reversed. The decision has to be so obviously wrong that no reasonable jurist would agree with it. Before our least favorite judge began his reign of cluelessness, I'd win maybe one out of four or five of these appeals. It's now running about 50-50.
Of course, these appeals don't take as much time as responding to a full blown appeal of a jury verdict, or an interlocutory appeal to the court of appeals, but they do take some appreciable amount of my time and my secretary's time. During the summer, interns handle a lot of the research and writing of these appeals. But when they return to school and to a day or two a week schedule, the time limits imposed on these actions require my full participation.
Wednesday, August 18, 2004
A Week In The Life Of An APA
With apologies to Ken Lammers, Jr., author of the truly excellent Crim Law weblog. Another Blogspot weblog, which I will link to as soon as I figure out how to do that. Maybe I need a new template? Well, that's half the fun. As I tell my kids, If it's not hard, how would you know you've accomplished anything? Sometimes I tell them If it's not hard, how can it be any fun? They always look at me it this really odd way, like a sprouted a spare head, or something. Anyway, I figured it out, so you should see "Crim Law" in the first line underlined or highlighted or however your browser shows hyperlinks. Anyway, enough of this drivel. The following is a typical week for me, which may be pretty boring as I am currently assigned to appeals and that's pretty much like being on the AV squad in high school. Or at least when I was in high school, many and many a year ago. In the coming weeks I'll try and give you a look at what goes on in the professional life of the trial attorneys in our various courts. But for now, you're stuck with me.
Monday
Stumble into the office, more or less on time. Fire up the trusty desktop and log in. See if the IT gremlins have bothered to let any of the pending critical updates install. Humm. Not yet. Get Outlook running and check mail -- 14 spam messages and, for a change, an actual email from a colleague in another county. Delete, delete, delete, etc. Read the real message. He's still at bit worked up over Blakely v Washington, Justice Scalia's latest attempt to do something radical (reactionary) to the criminal justice system. Flag for later response as it is now time to leave for the weekly staff meeting. Get coffee from the break room on the way.
Our staff meetings are held in the new (well, three years ago) conference room around a massive conference table which just barely has room for all the APAs on the handful of Mondays when we are all free to attend. The previous Friday the Chief Assistant or a designated senior assistant will have reviewed the felony cases authorized the previous week, setting aside any that are sufficiently odd or interesting to bring to the attention of the APAs. This is also the time for APAs to being problem files to the attention of the office as a whole. Both the elected PA and the chief assistant attend these meetings, so policy decisions can be made, if necessary. The weekend felony warrants are also reviewed, briefly. This is also the time problem authorizations are discussed.
Even though we have a designated warrant attorney for felony requests, we all get requests directed to us because of either designation by the PA (e.g. all felony drug cases are reviewed by one APA, child sexual assault cases by another, oddball computer crimes by me, political hot potatoes by the Chief, etc.) or familiarity with co-defendants or companion cases. Or, sometimes, blatant warrant shopping by a cop. That's been pretty much beaten down by the current and previous PA, but it still happens from time to time. Almost by definition these rogue requests are problem requests. If there wasn't something weird about the case, why waste time tracking down a favorite APA? This morning, the only file of interest is one of these problem warrants.
It's a criminal sexual assault request where the complaining victim is the live-in girlfriend of the suspect. That's pretty uncommon in and of itself, but it gets better. These two middle-aged folks have been living together for a few years, they have a child in common, and if common law marriage still existed in this state, they'd probably be married by now. The problem started about two months ago when the female half (as our cops like to say) woke up to discover the male half having intimate relations with her. Something she seems to have strongly disapproved of. She says she told him that was disgusting, she wouldn't ever consent to that, and not to do it again. You know what the problem is, of course.
Last week, she goes out with her girlfriends and gets a little tipsy and comes home and just drops down on her bed, fully clothed. When she wakes up, she's been undressed and she thinks something of an intimate nature happened. She goes ballistic. She calls a friend and goes to the ER and has a rape kit done. She calls the police. Now, you have to understand that if he did, in fact, have sexual relations with her while she was unconscious, he's committed a serious felony with a 15 year maximum. Even if she had never told him she did not want to participate in that kind of sexual activity. The problem, as I see it, is not did a crime occur - taking the victim's statement at face value, a crime occurred - but whether this case meets our criteria for authorization. That is, is there a reasonable likelihood of obtaining a conviction at trial? Or, put another way, can we convince a jury, beyond a reasonable doubt, that this guy should be convicted?
To my surprise, I find myself engaged with another senior assistant in a old fashioned, school yard pissing contest over whether there has been any crime at all! The problem seems to be that the victim didn't pack up and move out the first time this happened, but stayed with the suspect. The nerve of the woman, expecting her significant other to accede to her wishes in this matter! That may be a consideration in the decision to issue a warrant, but not in determining if a crime was committed. Jeez!
Once the Chief Assistant calmed everyone down, we discussed the latest stupid judge tricks by our least favorite misdemeanor court judge. A person who ascended to the bench after an expensive (total expenditures by all candidates, over $300,000, and we're not a very big county) acrimonious, just plain nasty campaign and a 25 year career specializing in domestic relations law (i.e. divorces), one of two areas of law that will never be seen in our misdemeanor court. (Juvenile law is the other.) This person was over their head the minute they swore the oath and slipped on the black dress. Now the judge has the idea that s/he can stop us from dismissing a misdemeanor and force a jury trial.
Our County's misdemeanor/first appearance court has, as of the last through audit by the State, a case break down of roughly 75% criminal-traffic and 25% civil. The civil cases are the usual mixed bag of contract, minor tort, and landlord tenant. The criminal-traffic cases cover everything from 30 day trespass to preliminary hearings on open murder cases. The bulk of the court's business being drunk driving, domestic violence, unlicensed driving, bad checks, minor drug possession/use, and minors in possession of tobacco and/or alcohol. 25 years of breaking up marriages is just the preparation you need to jump into this mix. Sure. It's been two years and the judge is just getting started on some sort of power trip. We'll file the preprinted motion for dismissal and see what happens.
Meeting over - more coffee on the way back to my office. Meet with Interns (second and third year law students) and check the progress of their appellate projects as they are fast approaching the dreaded return to school. This pretty much kills the rest of the morning.
In the afternoon it's heads down writing and research. I alternate working on a Blakely memo that is fast turning into a major article with doing the initial research for a reply brief to an appellant's brief that is setting the standard for boring and unimaginative. And killing spam as it comes in.
The end of the day finally rolls around and I depart the halls of justice for another day.
Monday
Stumble into the office, more or less on time. Fire up the trusty desktop and log in. See if the IT gremlins have bothered to let any of the pending critical updates install. Humm. Not yet. Get Outlook running and check mail -- 14 spam messages and, for a change, an actual email from a colleague in another county. Delete, delete, delete, etc. Read the real message. He's still at bit worked up over Blakely v Washington, Justice Scalia's latest attempt to do something radical (reactionary) to the criminal justice system. Flag for later response as it is now time to leave for the weekly staff meeting. Get coffee from the break room on the way.
Our staff meetings are held in the new (well, three years ago) conference room around a massive conference table which just barely has room for all the APAs on the handful of Mondays when we are all free to attend. The previous Friday the Chief Assistant or a designated senior assistant will have reviewed the felony cases authorized the previous week, setting aside any that are sufficiently odd or interesting to bring to the attention of the APAs. This is also the time for APAs to being problem files to the attention of the office as a whole. Both the elected PA and the chief assistant attend these meetings, so policy decisions can be made, if necessary. The weekend felony warrants are also reviewed, briefly. This is also the time problem authorizations are discussed.
Even though we have a designated warrant attorney for felony requests, we all get requests directed to us because of either designation by the PA (e.g. all felony drug cases are reviewed by one APA, child sexual assault cases by another, oddball computer crimes by me, political hot potatoes by the Chief, etc.) or familiarity with co-defendants or companion cases. Or, sometimes, blatant warrant shopping by a cop. That's been pretty much beaten down by the current and previous PA, but it still happens from time to time. Almost by definition these rogue requests are problem requests. If there wasn't something weird about the case, why waste time tracking down a favorite APA? This morning, the only file of interest is one of these problem warrants.
It's a criminal sexual assault request where the complaining victim is the live-in girlfriend of the suspect. That's pretty uncommon in and of itself, but it gets better. These two middle-aged folks have been living together for a few years, they have a child in common, and if common law marriage still existed in this state, they'd probably be married by now. The problem started about two months ago when the female half (as our cops like to say) woke up to discover the male half having intimate relations with her. Something she seems to have strongly disapproved of. She says she told him that was disgusting, she wouldn't ever consent to that, and not to do it again. You know what the problem is, of course.
Last week, she goes out with her girlfriends and gets a little tipsy and comes home and just drops down on her bed, fully clothed. When she wakes up, she's been undressed and she thinks something of an intimate nature happened. She goes ballistic. She calls a friend and goes to the ER and has a rape kit done. She calls the police. Now, you have to understand that if he did, in fact, have sexual relations with her while she was unconscious, he's committed a serious felony with a 15 year maximum. Even if she had never told him she did not want to participate in that kind of sexual activity. The problem, as I see it, is not did a crime occur - taking the victim's statement at face value, a crime occurred - but whether this case meets our criteria for authorization. That is, is there a reasonable likelihood of obtaining a conviction at trial? Or, put another way, can we convince a jury, beyond a reasonable doubt, that this guy should be convicted?
To my surprise, I find myself engaged with another senior assistant in a old fashioned, school yard pissing contest over whether there has been any crime at all! The problem seems to be that the victim didn't pack up and move out the first time this happened, but stayed with the suspect. The nerve of the woman, expecting her significant other to accede to her wishes in this matter! That may be a consideration in the decision to issue a warrant, but not in determining if a crime was committed. Jeez!
Once the Chief Assistant calmed everyone down, we discussed the latest stupid judge tricks by our least favorite misdemeanor court judge. A person who ascended to the bench after an expensive (total expenditures by all candidates, over $300,000, and we're not a very big county) acrimonious, just plain nasty campaign and a 25 year career specializing in domestic relations law (i.e. divorces), one of two areas of law that will never be seen in our misdemeanor court. (Juvenile law is the other.) This person was over their head the minute they swore the oath and slipped on the black dress. Now the judge has the idea that s/he can stop us from dismissing a misdemeanor and force a jury trial.
Our County's misdemeanor/first appearance court has, as of the last through audit by the State, a case break down of roughly 75% criminal-traffic and 25% civil. The civil cases are the usual mixed bag of contract, minor tort, and landlord tenant. The criminal-traffic cases cover everything from 30 day trespass to preliminary hearings on open murder cases. The bulk of the court's business being drunk driving, domestic violence, unlicensed driving, bad checks, minor drug possession/use, and minors in possession of tobacco and/or alcohol. 25 years of breaking up marriages is just the preparation you need to jump into this mix. Sure. It's been two years and the judge is just getting started on some sort of power trip. We'll file the preprinted motion for dismissal and see what happens.
Meeting over - more coffee on the way back to my office. Meet with Interns (second and third year law students) and check the progress of their appellate projects as they are fast approaching the dreaded return to school. This pretty much kills the rest of the morning.
In the afternoon it's heads down writing and research. I alternate working on a Blakely memo that is fast turning into a major article with doing the initial research for a reply brief to an appellant's brief that is setting the standard for boring and unimaginative. And killing spam as it comes in.
The end of the day finally rolls around and I depart the halls of justice for another day.
Saturday, August 07, 2004
At the Threshold
Well, I suppose I should write something to get this weblog started. Otherwise someone might wind up here and wonder what the heck is going on. He's got a neat title, but no content, other than that profile. Can't have that,can we?
So, why "Mister District Attorney" aka misterda? It says right up there on top that I'm an assistant prosecutor, not an assistant DA. Well, as Robert Traver, another prosecuting attorney, said, introducing his collection of short stores Small Town DA, he used the term DA because that's the more familiar title, across the United States. Because of that familiarity, It sort of covers us all, the prosecuting attorneys, the state's attorneys, the county solicitors, the city attorneys, the township attorneys, and, of course, the district attorneys.
So, why a weblog, anyway? Because I've had the itch to do something like this for a while. Because Blogger enticed me with its ease of set up and maintenance. Because there are so few prosecutors (if any) doing weblogs. More defense attorneys than you can shake a stick at, darn few (none I've found, anyway) prosecutors. Prosecutors can be fun and amusing, too. Plus, we've got these great white hats. . . .
If I'm wrong, and the Internet woods are crawling with APAs, ADAs, etc., posting away, will someone let me know?
So, why "Mister District Attorney" aka misterda? It says right up there on top that I'm an assistant prosecutor, not an assistant DA. Well, as Robert Traver, another prosecuting attorney, said, introducing his collection of short stores Small Town DA, he used the term DA because that's the more familiar title, across the United States. Because of that familiarity, It sort of covers us all, the prosecuting attorneys, the state's attorneys, the county solicitors, the city attorneys, the township attorneys, and, of course, the district attorneys.
So, why a weblog, anyway? Because I've had the itch to do something like this for a while. Because Blogger enticed me with its ease of set up and maintenance. Because there are so few prosecutors (if any) doing weblogs. More defense attorneys than you can shake a stick at, darn few (none I've found, anyway) prosecutors. Prosecutors can be fun and amusing, too. Plus, we've got these great white hats. . . .
If I'm wrong, and the Internet woods are crawling with APAs, ADAs, etc., posting away, will someone let me know?
Subscribe to:
Posts (Atom)
