CrimLaw

Blogging Criminally For Over Ten Years

1/10/2004

A Week in the Life of a Criminal Defense Attorney:

Monday: I go off to a rural court so that two of my clients can be sentenced. The first comes out of lock-up in his prison garb and before we can even start the judge asks me how much time my client has been sentenced to in the three other jurisdictions where he had statutory burglary charges and a show cause. "37 years 2 months, Your Honor." The sentencing guidelines called for my client to get somewhere between 3 years+ and eight with a "mid-point" (the usual sentence) of 5 years. The Commonwealth argues that no matter what his other sentences are the Defendant must pay for his burglary in this county as well. I stand up and point out the sad story of my client's terrible formative years and his almost inevitable descent into drug abuse and crime. I point out that he is going to serve at least 32 years (there is no parole in Virginia - convicts serve at least 85%). The judge looks down at my client and sentences him to 8 years but suspends the entire sentence.

The second client was on bond. When he first came to my office he was wearing big skull rings and a jacket which had something like "White Power" on it, his hair was shaved very low, tattoos were visible all over his arms and whatever part of his body was visible, and he was wearing very thick rimmed black plastic "Clark Kent" glasses. He stood charged with a number of felonies. By the time we got to sentencing, he showed up in a very nice blue suit, had a nice short haircut, no tattoos were visible, the jewelry was gone but he still had the Clark Kents; his charges had all boiled down to a single possession of a sawed off shotgun and the recommendation (with which the Commonwealth agreed) was probation. The hearing was going swimmingly until right at the end the judge looks over at my client and asks, "The presentence report says almost the entire upper half of your body is covered with tattoos. Do you look today like you did when you were arrested?" Oh, shit. Client looks panicked and stammers something like "S s sir?" Judge: "Well, are you wearing the same sort of clothes? Is your hair the same? Did you have those glasses?" Client regains his footing a little and answers "Well, I wore the suit out of respect for the court; my hair's a little longer; and the glasses are the same." That seemed to satisfy the judge; he asked a few more questions and then sentenced my client to six months and suspended the entire sentence. I am convinced that the reason he started asking questions was because of the Clark Kents. They looked like the $5 reading glasses you can buy at WalMart - so fake looking I'm sure he thought my client was wearing them for effect.

Tuesday: I go to court and argue a the constitutionality of a stop and search. The officer testifies she pulled Client over for weaving on suspicion of DUI. Gets Client and Passenger out of truck. No odor of alcohol, no slurred speech, no stumbling or any other indicators. Officer doesn't administer a single sobriety test. While she is "checking my client's license and registration" the officer pulls her drug sniffing dog out of her car and runs it past Client, Passenger and the truck. Dog does not indicate on the truck, dog hovers in Client's genital area (which officer interprets as reacting to menstruation and non-presence of drugs), and dog indicates Passenger has drugs. Passenger is searched but has no drugs on him and tells officer that he was around people smoking marijuana earlier in the day. Then the officer searches the truck and finds drugs. Then officer approaches Client and tells her that a search is going to take place and if Client has any drugs to fess up. Client pulls drugs from her pocket and hands them to officer.

I argue a number of violations. The strongest constitutional arguments are that the truck search was unconstitutional because there was no PC which would allow a Belton search and that once the officer forwent the investigation of the DUI that there was an unconstitutional seizure for holding beyond the time necessary to investigate the pretext offense.

The Commonwealth really has no answer to my argument. His strongest statement was that Passenger said he had been around marijuana earlier and maybe it was in the truck. I stand up in rebuttal and point out that "maybe" isn't the constitutional standard and that the dog had already given the officers a positive indicator of non-presence

The judge fusses back and forth with me for a minute about whether my client has standing to object to the search since nobody had shown her to be the owner of the truck - she was just the driver. Still, it is looking real good and I'm starting to think that I am about to win a suppression motion in one of the most conservative counties in one of the most conservative States in the country. Then, suddenly, ambiguity is snatched from the jaws of victory. The judge looks down and tells everybody how serious this is and how he wants us to brief it. So now I have four weeks to brief it, the Commonwealth has two weeks to answer, and I will have a week to make a reply if I so wish. Aaarrgggg!!! So close . . .

Wednesday: I go to court on a day where I am scheduled to have a jury trial. Before trial the Commonwealth offers to drop the felony possession of cocaine to misdemeanor possession of paraphernalia with no active time and my client decides to take the deal. I leave the circuit court area and walk down to the general district court. As I am walking down the hall a kid hails me and reminds me that he had talked to me a couple months earlier in the same hallway but he'd never been able to get the money together to hire an attorney and the court wouldn't appoint one and the court wouldn't give him a continuance. He swears he will pay me at 2 p.m. on Friday (payday) if I will represent him today. I look at his warrants/summons and realize that if he doesn't have an attorney he's going to end up getting hit a lot harder than needs be. I also figure I'm due to donate some pro bono publico time (I long ago gave up believing that my clients would gladly pay me Tuesday for a hamburger today). I go in and get the Commonwealth to drop two charges and the guy gets out of court only convicted of a first time DUI. And, no, he didn't show up on Friday.

Thursday: I go to court and try to get a client in a drug treatment / mental health program but he's homeless so we have to put off the entry while the program tries to find someplace for him to live.

As I am walking out of the courthouse two women approach me and ask if I know Attorney Smith. I tell them I do but I've not seen him. They ask if I knew how to get in contact with him because they have been unable. I tell them he is a Reverend and maybe they should call information and ask for his phone number. One of the girls immediately turns to the other and says, "Oh, great, you're not only going to jail, you're going to Hell too."

Friday: I go to court for a client who is charged with driving on a suspended license. We get a continuance so that he can try to get his license back and come to court with it (hopefully getting the charge reduced).

As I am walking out a Commonwealth Attorney asks me to come help with mock trials for the police cadets. So I spend the rest of the morning cross examining the officers to be or playing judge. One time I even played persecutor (it felt really weird arguing that the officer had properly followed Miranda). Lots of fun and it gives you a chance to develop good relations with the incoming officers.

Then I come back to my office and work on a petition for appeal to the Virginia Court of Appeals. There is at no stage a mandatory appeal in Virginia - all appeals must be by petition and acceptance. I am really sinking my teeth into one substantial error the judge made. I find a number of cases and secondary sources which are directly on point and my argument is shaping up very nicely. Then I realize that the error only effects one charge and it's the only charge (out of 8) of which my client was found not guilty. Back to the drawing board . . . Now I get to spend all day Saturday getting this petition together based on my two remaining arguments.

Oh, yeah, BTW, as I do every Friday I had open office hours from 2 p.m. until 5 p.m. and as usually occurs not a single one of my clients came to the office. Still, it gives me time to get things like this petition done (as long as I don't get sidetracked on wild goose chases).

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Ambush in Bartlette
Chapters 1 - 13

Law & Theory

LAWS
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Aggravated Malicious Wounding
The Moped Exception
Rape by Lie: 1 ~ 2 ~ 3
No Intent Needed
Arresting in a House
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Certificate of Analysis Introduction
Probable Cause: Car Passengers
Obstruction of Justice Limited
Stealing Electronic Items
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Stolen Value: Electronic Items
No Weekend Jail on Felonies
Obstruction of Justice Limited
No Trifurcation
No More Beer at the Barbeque
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Can You Steal From the Dead?
Outlawry Outlawed
Felony 2d Degree Murder
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Computer Fraud
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Using Statements Made During Plea Negotiations: 1 ~ 2a ~ 2b ~ 2c
Invoking Right to Attorney in Virginia
Who Prosecutes Misdemeanors?
Expungement
Surrebuttal
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Reasonable Doubt II
Instruction: Right to Arm
Virginia Castle Doctrine1 ~ 2 ~ 3 ~
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I. Limitations on Right of Judge to Alter a Sentence
II. Limitations on Right of Judge to Alter a Sentence
III. Limitations on Right of Judge to Alter a Sentence
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Advisement in Virginia
Jury v. Judge (sentencing roles)
Limits on Evidence Presentable to a Jury
Jury Sentencing Possibilities
&CETERA
Witnesses & Writ of Actual Innocence
Domestic Battery & Firearm Possession
Domestic Battery & Testimony I
Domestic Battery & Testimony II
Domestic Battery & Testimony III
Domestic Battery & Testimony IV
Shall Doesn't Mean Shall
Just Following Orders
Lycurgus Not Welcome in Virginia

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Back When I was a Defense Attorney

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In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.

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Everything herein is copyrighted by Kenneth Frank Patrick Lammers Junior. License for use of particular posts is granted so long as this site is linked to and credited. Serial republishing of all or the majority of posts on a separate website from CrimLaw is forbidden.

1/10/2004

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