Monday, July 31, 2006

Bad result

I tried a domestic violence case today. I was pretty sure that it would be a long, uphill battle. My guy was accused of fighting his dad. We had some things going for us, though, and it was a triable case.

As I feared, my guy was convicted on both counts. Because he had numerous arrests, the State was asking for a 180 days in jail. I was on my way, I think, into talking the Judge into the pre-trial recommendation, which would have been 90 days with probation and certain conditions.

However, my guy started talking. The Judge was thinking that the client had a drinking problem, based on some stuff that came out. But my guy denied it, and started giving the Judge responses that the guy didn't like his responses. So, my guy ended up talking himself into 12 months in jail.

The thing is, I told the prosecutor, prior to trial, that if my client got convicted, he'd end up doing a year. Go figure.

Tuesday, July 25, 2006


The state office that sets caseload standards here says that an assistant public defender shouldn't close more than 300 misdemeanors per year.

I've closed 311 since January 1, and I have a whole stack waiting to be closed. Somehow, I doubt that the county is going to let me take the rest of the year off.

Monday, July 24, 2006

Directed Verdict of Acquittal

Those are sweet, sweet words to the ears of a criminal defense attorney. They are also very, very rare.

I picked a jury on a domestic violence case this morning, although I had some misgivings. After my last domestic violence case, I've gotten a little gunshy. That last verdict threw me for a loop because it just seemed unjust, in the truest sense of the word. There is no way that the State could have carried their burden, yet the jury found that they did. Go figure.

Essentially, all the State had here was the 911 tape. The complaining witness had gone over to the neighbor's house and had the neighbor dial 911. I managed to keep the most damaging portions of it out of evidence, but there was still a fair amount of crying and drama on the tape. The State wasn't able to serve the complaining witness, so she wasn't there. (I had made a motion to dismiss for want of prosecution first thing, but the Judge denied it.) And the neighbor testified about what she heard, which wasn't much. And then the State tried to call the police officer. While he appeared in the morning, first thing, he could not be found later one. He had worked the morning watch, and had gone to take a nap in his truck. Apparently, his cell phone wasn't working in the parking deck. So the Judge recessed for lunch early.

I agonized over whether the client should testify or not. In all the D.V. cases that I've won, the client has testified. In those cases where the client hasn't testified, we've lost. And that's something that I didn't realize until I typed those very words. In any event, I was nervous in this case, because I think juries, no matter how much you try to educate them to the contrary, want to hear from the defendant. In this case, however, things would have gotten a little sticky had the client testified.

When we returned after lunch, the officer could not be found, and the Judge looked directly at me and said, "do you have a motion?" I was a little thrown off, because the State hadn't formally rested, it wasn't quite time yet to make the directed motion verdict but I went ahead and renewed the motion to dismiss for want of prosecution. And, because the Judge didn't respond, I made a motion for directed verdict on some counts where there was an utter failure or proof.

The Judge then asked for the State's position, and ended up granting the motion to dimiss for want of prosecution. He stated twice, I think, that they State couldn't prove essential elements of the offense. It then became clear that he was talking about all of the charges, and not just the ones I identified in my motion. When the assistant prosecutor pointed out that they had in fact prosecuted, the Judge agreed that the motion I had made wasn't the proper vehicle, and directed a verdict on all of the counts. I did not expect that at all, because it is so very rare. There was some testimony that the complaining witness had cuts and had hair torn out. I had assumed that the Judge would find that, given the circumstances, the State had established a prima facie case. Needless to say, I was pleasantly surprised and then explained it all to my client.

The only downside was, I never got to give my closing. All of the energy I had built up had nowehere to go. I did nothing for the rest of the afternoon, and I'm sure that I'll be paying for that.

Thursday, July 20, 2006


For whatever reason, we have a suprisingly large number of East African refugees here. It is large enough that I have made some inroads into the community during the 9 months I've been working here. I learn more about the region nearly every week, through my clients.

Today, I had a guy at jail pleas charged with misdemeanor marijuana. I call him up, we start talking. He tells me right away that he had a small quantity of marijuana on him.
He proceeds to tell me this horrible tale about how he was mistreated by the police. They found a copy of the Koran, which apparently had been printed in Iran. They called him a terrorist and pushed him around. They threatened him with deportation. They said other insulting things, which he wouldn't even repeat to me. They had taken all of his belongings and expected that he would be deported. This guy is from East Africa originally and a Muslim, but obviously spent a lot of time here because he has a New York accent. In fact, he is a naturalized citizen and has served this country in the armed forces. He was working for a pizza chain, delivering pizzas. He had fallen on hard times and was sleeping in his car for a couple of weeks.

After getting his side of the story, I walked over to the prosecutor's table and got the file so I can make some sense of what is going on and grab the warrant. The file only had the accusation, the warrant, and his criminal history. There iass no report. When the prosecutor hasn't gotten the report yet, I have no idea why the guy was stopped, so I normally suggest that we wait a week. That is never popular, because that means the client has to sit in jail for another week.

In any event, I take a close look at the warrant, and the magistrate had written by hand that the fellow had "Hamas clippings" in his car and that he wasn't using his own name. So they called Homeland Security.

What the hell?

I dig a little deeper in his criminal history, and it becomes quite obvious that he isn't using his own name. Because his real name is the surname of the former royal family, and that could get a person killed or kidnapped in his old country. So, in a very pragmatic move, he adopted a pseudonym.

And as for the Hamas newspaper clippings -- so what? He has been living in his car for the past two weeks. Guys who come to this country to do bad things at least have enough resources that they can rent an apartment in a non-descript quarter of town. They don't live out of their cars. They don't work for pizza parlors.

So I go back and talk to him, and explain that I am uneasy resolving his case, because I don't know why he was stopped, so I can't tell if the prosecutor would be able to prove him guilty of the controlled substance violation. (A bad stop would mean that the marijuana was supressed and the State's case would implode.) In a move that made my stomach drop, he said, "This is what the Muslims must deal with" and told me that he just wanted to get it over with. I explain that the fatalistic attitude only reinforces the problem. He says, "you're just one man, what difference can you make?" And I respond, "I can fight for you!" I tried for a while longer to persuade him that we should ask for a bond modification so that he could get out, or at least wait until next week, so that the prosecutor's could secure the report. He insists that he just wants to get the case done.

So we enter the plea.

That was this morning, and he should be hitting the street just about now. I hope he has a place to sleep tonight.

Tuesday, July 18, 2006

Mental health court

In our county, we have a mental health diversion for program. That means that the case is diverted from the normal trial process and the client's mental health condition is treated. If they comply with the terms of the program, then their case is eventually dismissed.

For whatever reason, there are a lot of people here who are profoundly, chronically, mentally ill. I have struggled for some time with the best approach to these sorts of cases. The dilemna is, do we delay getting them out of jail to ensure that they get some sort of treatment. Our jail is big, holding over 3000 people, I think. The conditions can be less than acceptable. In fact, litigation, brought by a local civil rights group challenging the conditions of the jail, just terminated after many years of supervision by the courts.

Our office hasn't had much involvement in the diversion program. For those of us in misdemeanor court, it's been a great option because the cases are referred to the program and, from our perspective, they end up going away. The advantage is that we haven't had to monitor the cases much and the client receives a benefit. However, it seems like there is a greater role for us to play. The prosecutor's office has a presence, and it seems like we should to. In addition, I'm not sure that we are utilizing the resource as well as we might.

So, for the next month or two, a colleague and I are going to observe the process and see what role makes the most sense for us.

Monday, July 17, 2006

Vacation's end

I had a nice, relaxing week, doing next to nothing and I'm feeling pretty well recharged.

I think that, in this line of business, it's particularly important to get away from time to time. Criminal defense lawyers, and especially public defenders, really need to monitor burn-out. The clients can be demanding, the judges can be demanding, the prosecutors can be demanding, and the caseload is demanding. Generally speaking, we've become public defenders because we want to serve the public, and it's hard to do that when we don't care about our client's best interests.

I was just disucssing this with a colleague today over lunch. He hasn't had a real vacation in a year and a half. He just went up to felony court a couple of months back, which is a different world altogether. I told him that it's necessary to get away, I think, just to decompress. Vacation becomes a win-win situation, then for us and for the clients, because we returned reinvigorated.

This week is devoted exclusively to appointments, which is kind of fun, and then the next two weeks are trial. I didn't pay attention after calendar call the week before last, but I just realized that my trials start next week, including 4 on Monday. Luckily, these are all cases that have been on the trial calendar once, so I have already done 95% of the prep. Unfortunately, the cases' age drops as the week goes on, as does the prep level. I haven't done a full count, but I'm guessing that I have over 30 cases set for trial.

Woohoo! It's good to be back!

PS: I did take my files with me, but they never made it out of the back of the car. Isn't that always the way?

Thursday, July 06, 2006


I have over 40 cases on the docket for calendar call tomorrow. (That's what they call the post-arraignment status conference here.) I imagine that most of those are going to be put over to the end of the month, on trial calendars. Which means that I'll probably have 30 some trials to prepare for.

Nonetheless, I am taking all of next week off. It will be my first vacation in two years. The most troubling question is whether I take my files with me.

Sunday, July 02, 2006

Unwanted advice

When I was a teen-ager, my parents repeated their mantra ad nauseum: short-term sacrifices for long-term goals. I didn't particulary like to hear it, but their is logic to it and it eventually stuck. I wish that my client's could have benefited from such direction when they were growing up.

On Friday morning, I covered jail arraignments for one of the other attorney's in our office. Basically, guys are brought over from the jail and have bond hearings or probation revocation hearings or get their cases started.

Several of these guys had felony probation revocation proceedings pending. Now, rather than just plead guilty to get out of jail, it's best if these guys exercise a little restraint and allow us, the misdemeanor attorneys, to coordinate with the felony attorneys. That way, we can work something out that will hurt them the least. Let's call this guy Mr. Smith. He had picked up several charges for going over to his girlfriend's house when there was a restraining order in effect and for kicking her door.

Because I was just covering and there were 30 guys on the calendar, I had asked that some of the other attorneys in the office help me out. So, I told the other attorney that Mr. Smith had a pending felony probation revocation. He knew the drill and told Mr. Smith that he was better off waiting. But Mr. Smith didn't want to hear any of that and asked to talk to someone else.

Eventually, I got around to talking to Mr. shortly before noon. I explained to him that he was better off waiting, so we could coordinate. He was convinced, however, that his felony judge was going to let him out, and the hearing was to be that very afternoon. He wanted out in the worst way. First, he wanted a bond modification and if that didn't work out, he wanted to enter a guilty plea. So, I worked out a deal that would hurt him as little as possible. We would enter an Alford plea (meaning he was maintaing his innocence but pleading guilty to avoid the consequences of an adverse verdict at trial) and all he would have to do for 12 months was comply with the restraining order that was in fact. I believe that the deal intially included a 26 week domestic violence intervention program.

We asked for bond modification, but the Judge didn't want to hear it because the guy had just been in front of the Judge two weeks ago on bond. The Judge invited him to enter a plea, if Mr. Smith wanted and Mr. Smith took him up on the offer. He was focused completely on his belief that the felony judge was going to let him out. He had been in jail for about 2 weeks.

However, the lunch hour was nearly half hour and the Judge was late for a conference call, so he set the case over to 1:30. I tried to find Mr. Smith's felony lawyer during the 10 minutes I was in the office, checking email and voicemail and getting organized for the afternoon, before I ran out to get lunch and headed back to court.

During the afternoon session, we went ahead with the plea and the prosecutor didn't recommend the DVIP program. So the guy just had to comply with the restraining order. I advised the Judge that the victim had come to the jail on several ocassions to visit Mr. Smith, including Thursday night, and that we were expecting that the restraining order would be rescinded. In the alternative, the Judge ordered no violent contact.

Afterwards, I went upstairs to talk to his felony attorney, who was waiting for Mr. Smith to come up. When I told my colleauge, he just closed his eyes and pinched the bridge of his nose. As it turns out, the attorney thought that the possibility of Mr. Smith being released that day was a long-shot and was pleased when Mr. Smith indicated that he was going to fight the case. Our state has a rule that if there are only technical violations of the conditions of probation, the judge can't exceed two years on a revocation. Mr. Smith effectively increased his exposure by entering his plea and had pretty much guaranteed that he would be spending more time in jail, if not actually going to prison. At that point, I explained what happened and the selling points of our plea, and then left to go meet a client back at the office, which I was already late for.

Three words: "short term sacrifices."

Hey, I'm just an Assistant Public Defender and not a "real lawyer," but sometimes I know what I'm talking about.