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6/22/2004

A Week in The Life of a Criminal Defense Attorney

Monday: I go to federal court so that my client can be re-arraigned and plead guilty to possession of 50 grams of crack cocaine. It bothers me because I don’t think the prosecutor can prove 50 grams. However, I know he can prove 5 or more grams. If we go to trial my client risks life imprisonment because of his prior record but if he pleads guilty his guidelines (after points for acceptance of responsibility) will put him in prison between 21-27 years. If we go to trial and the jury convicts him of possession of 5 or more grams his guidelines would put him between 21-27 years (because he won’t get points for accepting responsibility); if he testifies at his trial it is quite possible that his sentence would be even higher. And the local prosecutor has a policy of not allowing Rule 35's for those who plead not guilty. Still, I’m worried that if the judge asks me whether I agree that the prosecutor can prove his case I will have to tell the judge “no” and hurt my client.

The hearing starts and my client pleads guilty. The magistrate judge tells him several times that he can back out of his plea at any time up to the end of the hearing and then proceeds to the questions. At the point where the judge asks me the all important question it comes out, “Mr. Lammers, do you agree that the evidence would prove your client’s guilt or that it is in your client’s best interest to plead guilty?” Hallelujah!! I’m off the hook: “It is in my client’s best interest to plead guilty, your Honor.” However, my sense of elation lasts only a few seconds. When the judge asks my client if he is guilty of what he is charged he states, “No.” Crap. The judge leaves the bench and I end up in a rather heated discussion with Client. When the judge comes back in Client tells the judge he is in fact guilty.

And justice is once again served in the federal system.

Tuesday: I don’t have any cases but I go down to the local courthouse to see if I can pick up a couple court appointments. While I’m at court I see two notable things. First, a lady walks up to me to ask which courtroom she has to be in. That’s not unusual; it happens at least twice a week. But then I look past her and see her daughters, both of whom have worn tube tops and short-shorts to court. It really wasn’t all that on the 12 year old but OMG the older daughter (17?) had all the right things in all the right places. I kinda froze for a second and then kept my eyes glued on the mother’s face as I explained when and where she was supposed to be in court. What in the world would make someone think that that was appropriate court clothing in a chilly, air-conditioned courthouse? Don’t get me wrong, if we’d been at a beach I’d have been happy to switch into dirty old man mode and leer with the rest of the guys (as it was it took some willpower to not) but how does one come to the thought, “Gee, I’m going to court today. Should I wear the red or black tube top?”

Second, while I’m sitting in court I see a lady come in with her lawyer to pitch for a bond. The lawyer is up there giving it everything he’s got. He’s talking about her strokes, her kids, her husband getting sent overseas, and everything else he can put forward to tug at the judge’s heartstrings. It looked pretty good until the prosecutor gets her shot and it comes out that the lady is wanted in another State, stands charged with $100,000 in bad checks in Virginia (prior to the current charge), and, in the charge at hand, was using her child’s baby carriage (with baby) to shoplift a couple thousand dollars worth of stuff from Sears. The judge denies bond. As they go to take her back to lockup she takes half a step, wails and collapses on the floor crying, moaning, sobbing, etc. Not in the least rattled, the judge looks over at the deputy and says with a shrug, “I’m going to step off the bench for a couple minutes so you all can deal with this,” waves off the deputy who comes up to escort him, and walks out. In the end, after at least thirty minutes of a hissy-fit worthy of any three year old, they haul her off to the hospital where she will get to spend a glorious night under observation while she is handcuffed to the bed. Nobody really believed it was anything other than hysteria but the lawyer had done such a good job of selling the fact she’d had previous strokes that no one was going to take the chance.

Wednesday: In the morning I go to court to represent a client on a marijuana charge, reckless driving (95 mph), and contempt of court. He is just in court for sentencing on the first two charges because he was convicted, in his absence, in 1992; the capias (bench warrant) was issued for contempt because he had not come to court. In the end he comes out of it with 10 days for the reckless, 6 days for the marijuana, and 4 days for the capias. The judge lets him serve the time on weekends and 20 days is actually 10 days because you only do half time on misdemeanors.

Later, another client has a bond hearing. It does not go well. Client has strong ties in Atlanta and NYC, a string of misdemeanor convictions, a prior felony distribution charge which is pending in another jurisdiction, and he’s facing a felony habitual offender charge. This carries a mandatory year for the absolute evil of driving after some authority in Virginia has told you not to drive and it is extremely easy for prosecutors to prove. Therefore, it is hard to convince judges that a client charged with this should not stay in jail and get a jump on the time he is going to serve. By law, the fact alone that he was on bond for a felony when he was picked up for the second felony means the judge is not supposed to give him a bond (yes, in Virginia we have legislatively overruled the part of that annoying federal constitution about bonds). Needless to say, the judge left my client sitting in jail.

In the afternoon I jump into my car and drive two hours northeast to a jail in Warsaw where the feds have one of my clients. For the first hour or so I am on the wrong road but I catch that before the roads veer too far apart and a 15 minute drive on a little country road gets me back on the right (slightly larger) country road. I get there just at the time I’m supposed to be there but, of course, all the professional visitation rooms are packed and we have to wait 30 minutes. Then I sit and watch 90 minutes of the federal probation officer trying to get my client to remember the exact ages of his 8 brothers and sisters and exactly where he was living 25 years ago. Client is trying hard but a lot of it just isn’t coming to him.

Finally the interview ends and I jump back into the car for the ride home. I turn the cell phone back on and I have messages. In fact two clerks from my local courthouse had called to try and find out why I wasn’t in court. Aw, crud. I missed a hearing. I start to call back and my phone cuts out. I wait a couple minutes and try again but the phone can’t even find service. By the time I am back in an area where there’s service it’s past 4:30 and the clerk’s office is closed.

Thursday: In the morning I have a client charged with an 8 month old driving suspended charge and a contempt capias for failing to appear in court. The defense? It wasn’t my client. Client lives in Warsaw and goes to work at 2 a.m. in the morning; there’s no way he could have been driving around the southern part of Chesterfield County at 10:40 on a Thursday night. And if he wasn’t the guy in the car he had no way of knowing the court date so he couldn’t be in contempt. Gotta give the officer credit, prior to court I ask him if he recognizes my client as the person from the car and he tells me that Client fits his general recollection but he cannot say 100%. Then I talk to the prosecutor who wants some further proof so I go talk to my client. Client is one of those guys who holds onto every court document he’s ever had so he pulls them out and hands them to me. All of the signatures on the other documents match; the signature on the summons for this case is starkly different from the ones on the other documents. I show this to the prosecutor and he decides he hasn’t got enough to go forward. All the charges are dropped.

I wait around until the morning docket ends and just before the judge leaves the bench I go up to do a mea culpa: “Your Honor, I’m sorry I missed court yesterday.”

Judge: “You did? I didn’t realize you had.”

Dang! The clerks covered for me and I blew it (in my defense the judge’s usual clerk was not in on Thursday so I couldn’t check with her first).

Judge: “That’s okay, Mr. Lammers, everybody makes a mistake once in a while. I don’t worry about you. You always make it to court.”

Nice of him to say. Obviously it isn’t always true, but it was nice of him to say it.

During pretrials I get assigned a client who has been picked up on a larceny of meat from a grocery store. It was convenient that he was picked up the night before because I represent him on a possession of cocaine charge this afternoon. Cynical being that I am, I go to talk to him convinced that it’s just a little too convenient. Nonetheless, it turns out that it was entirely coincidental; my client just did a bad job of stealing at the wrong time.

In the afternoon I go to represent him on the possession but it turns out that the lab report hasn’t come in yet. Therefore, the case will be continued. This has been a continuing problem and the judges aren’t too happy with it (the supreme court fusses at them for continuing too many cases) but there really isn’t anything anybody can do to change it. While waiting for Client to be brought out, I decide to tweak the prosecutor a little and suggest the court adopt the same policy my clients keep telling me is in place in Richmond and automatically dismiss any cases wherein the report hasn’t been received within 45 days. The judge looks intrigued for a couple seconds but the prosecutor quickly jumps in to point out that this would just mean that all the drug cases would end up getting direct indictments and the subject fades as my client is finally brought up and we take care of the continuance.

Friday: First thing in the morning, I run off to the local courthouse in order to handle a felony petit larceny but my client is not there. This is interesting because she didn’t have a bond and was being held at the local jail. I check the local jail list and call the regional jail to see if she’s in either: nope. So then I expand my calling radius to other nearby jails and it turns out she’s in Richmond’s jail. Our local jail had shipped her there and not bothered to tell anyone. Therefore, this case gets continued until she can be brought to court.

I jump in my car and zoom over to another county where my client is charged with 3 misdemeanor bad check charges and 1 felony bad check charges. After a little bit of negotiation the prosecutor agrees to drop all the misdemeanors and reduce the felony to a misdemeanor with 30 days suspended as long as my client pays all the checks.

Thereafter, I go back to my office for Friday afternoon open office hours and not a single client shows up.

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Aggravated Malicious Wounding
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Stealing Electronic Items
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Obstruction of Justice Limited
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Can You Steal From the Dead?
Outlawry Outlawed
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Using Statements Made During Plea Negotiations: 1 ~ 2a ~ 2b ~ 2c
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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

Client Communication
~~~~~~~~~~~~~~~

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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.

6/22/2004

A Week in The Life of a Criminal Defense Attorney

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