Wednesday, December 28, 2005

The beginning of the cycle

So, today I took all my files over to the prosecutor's office that are set in the January trial calendar. Its always strange at first, because I read the report and I listen to what the prosecutor has to say, and they're always so confident about their cases. And I end up thinking to myself, "dude, you are so screwed. I hope you listen to me and we resolve this thing before trial."

And then, I'll set appointments for all of my folks to come in, and I'll listen to their stories, and I won't believe that the prosecutor actually buys the cop's story. I will be aching to try the case, so I can prove I was right to the prosecutor.

Funny, I've been doing this long enough now that I can identify the cycle. Perhaps I'm naive, but I actually believe what my clients tell me. For their sake, I hope I don't lose that naivety.

Wednesday, December 21, 2005

All in a day's work

Before my current job, I was working at a small community defender in the southern metro area, defending misdemeanors. That particular county historically has been rural, but has experiencing massive growth in the last five years or so.

I really enjoyed my time working there. The bar was relatively small, and I had a very good working relationship with the prosecutors there. They are a good group of people, who were professional and would let me know when they couldn't bend any further. Without taking it personally.

In July, I tried a vehicular homicide. These sort of cases are particularly tough -- the charge requires some sort of violation of the motor vehicle code (which must happen a thousand times a day here in the metro area) that ends up causing someone's death. There is no requirement that the defendant intended the person's death. Otherwise, it would be manslaughter or murder. So, what would normally be a $280 fine turns into the very real possibility of jail time and license suspension, mostly because of bad luck. In this particular case, they had also charged him with following too closely. Which really is a $280 fine.

My client was an Asian pastor, who was living in another state here in the southeast. The accident occurred on one of the connector Interstates, which doesn't get a whole lot of traffic at that time of the day. Basically, it connected one big interstate with another. The report said that my guy basically passed one guy on the right and then tried to shoot the gap, failing miserably. My guy testifed that a vehicle in front of him was traveling slowly, so he tried to pass on the right. He checked his blind spot, looked back, and there was a vehicle in front of him. He assumed that it was the vehicle that he was trying to pass, but he couldn't avoid the accident.

I really liked the guy, and felt awful that he was charged with the offense. After I put in my case, the prosecutor called a rebuttal witness which completely changed everybody's understanding of the facts. (Including the prosecutor's!) Instead of coming from the left, it turns out that the decedent's vehicle was entering the highway from the right. That's a hell of a thing to find out on freakin' rebuttal. And, the rebuttal witness testifed that they had only travelled about 100 feet in the right lane before the accident occurred. They were going slowly because they were moving the witness' son to some other community. How can that possibly be following too closely?? At 65 miles an hour, which was the testimony concerning my client's speed, a vehicle can eat up 65 miles an hour pretty quickly. In this State, a person isn't guilty of following too closely if the other vehicle enters the defendant's lane. Given that and the logistics of how this accident happened, I just don't see how my client was guilty of a motor vehicle violation. And without the motor vehicle violation, of course, he can't be guilty of vehicular homicide.

Anyway, the Court heard the motion for new trial. In this particular county, the judges automatically appoint successor counsel, so any issues of ineffective assistance could be heard at the trial level and then taken to the Court of Appeals expeditiously. Some people take it personally when successor counsel alleges ineffective assistance. And I can see that, because successor counsel is basically saying that trial counsel was so inept that no sober lawyer in his right mind would have tried the case that way. But I don't take it like that -- successor counsel is just doing a job, making sure that all the bases are covered before the case goes to the Court of Appeals. And, afterall, the whole point is to get a good outcome for the client, isn't it? Obviously, trial counsel can't lie about what happened, but what's wrong with taking one for the team?

So I testifed for about an hour and a half about what the choices I had made at trial. To tell the truth, I couldn't remember many details, because I had not reviewed/did not have access to the trial transcript and the file belongs to the old job. In any event, I'm half hoping that the Judge finds the I was ineffective, because the case was definitely winnable, and it just doesn't seem right to me that the client should be convicted on these facts. But, that's no longer my worry, I guess, as the case is in successor counsel's hands now.

On the plus side, my new boss gave me administrative time to go and testify, so I didn't have to burn any annual leave. He rocks harder than Van Halen. ... but that isn't really saying much, now is it?

Monday, December 19, 2005

The beginning

So, after I graduated from law school, I never really thought that I would be interested in criminal defense. Straight out of school, I clerked for a Circuit Court Judge in my home-state of Michigan. At that time, I thought that I would want to work either for an insurance defense firm or for a prosecutor's office. I spent too much time with my job-search narrowly focussed. Michigan's economy has been bad since the late '70's, and there simply weren't enough jobs for lawyers. (Or, conversely, there were too many lawyers!)

When it became apparent that I had stayed too long as a clerk, I took a job at a community defender in northern Michigan. A buddy of mine from school was leaving the job, and he gave the boss my name... After I started working there, there was no turning back.

I am one of the lucky ones that actually enjoys work. I once had a deputy sherrif ask me why I was working defense, and the answer that immediately came to mind was that I enjoy the challenge. Prosecutor's have it fairly easy, it seems to me. Someone else investigates and brings a report to them that summarizes the theory of the case. They have all the resources of the state at their disposal, and have almost always have the upper hand. And they have a tremendous amount of credibility with the public. I think most jurors must think, although they would not admit it, that a person who has been arrested must have done something. Being a defender is a challenge -- there's very little money, the investigation is done almost entirely by the lawyer, and there is that credibility gap.

In any event, after working as a defender for awhile, I found a passion for it. I can't imagine doing anyting else now. At least, in law I can't.