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4/19/2006

Arguing in the Appellate Court Virginian

Yesterday was my first argument in the Virginia Court of Appeals. While I was sitting in the office waiting for appointments to show this afternoon I sat down and typed out as much as I could remember. It's accurate to a point. Parts that followed my planned argument are easier to remember as well as some other, ummm, "interesting" parts. Admittedly, I remember my answers the best but I suspect that the memories of the first few answers are more accurate than those mid to late argument and some of my answers probably weren't as well made as I now recall. The judge's questions are all summarized (and probably miss some points). The summary of the Senior Assistant Attorney General's argument is terrible and does her an injustice. I remember her argument as being very well made; I just can't remember it except for the notes I took to reply to certain parts.

The case is about the application of Virginia's speedy trial statute which requires that a case be dismissed if a defendant is held in continuous custody for 5 months after his preliminary hearing without trial and that people who are not in continuous custody must have their cases tried in less than 9 months. Mr. Smith was tried after six months had passed from his prelim.

At trial, the prosecutor argued that the 5 months was not applicable to Mr. Smith because he was being held in a juvenile detention facility on a charge entirely unrelated to the case on trial and therefore was not being held for the case on trial; Mr. Smith was clearly tried within the 9 month period. This is the argument which won the day in the trial court. On the appeal, the attorney general raised an argument which had not been raised in the trial court. Relying on the order setting the trial date, which used canned language stating the date was set "with concurrence of defense counsel" the Attorney General asserted that I had waived my statutory obligation to object to the setting of a date outside the speedy trial period. I wasn't present when the date was set in order to object and had noted a "continuing objection" when I provided potential dates to the prosecutor (who set the trial date in tandem with the judge).

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Good Morning, your Honor, I'd like to reserve 5 minutes.

May it please the Court, Counsel.

I'd like to address first the argument I think is the strongest one made by the Attorney General: that I acquiesced in allowing a court date to be set beyond the speedy trial period.

It's their strongest argument because it wasn't raised by the Commonwealth attorney in the circuit court.

* Judge Jones: Are you talking about the 14 December order setting the trial date?

Yes, your honor. It's a pro forma standardized order the clerk's office issues in every case.

* Judge Jones: How is this case different from Hudson v. Commonwealth?

This case is different because of the manner in which cases are set in Pitcairn County. The defense attorney is not present when cases are set in Pitcairn County. He's only there on the date set for trial. Defense attorneys forward their available dates to the Commonwealth Attorney before the date is set. On page 59 of the appendix you'll see that my dates were so forwarded; I noted every date within the speedy trial period as an available date and thereafter listed my later available dates. The Commonwealth Attorney took those dates to the judge and they set the date.

* Judge Jones: Were you precluded from going to set the date?

Sir, I've never tried to go and had a deputy bar me from the judge's chambers. However, in Pitcairn County the standard practice is for the Commonwealth and the judge to meet and set the court dates. I provided my available dates; I didn't try to break into the judge's chambers to take part in this proceeding.

* Judge Jones: You provided the chosen trial date as available?

Yes sir, but if you look at the top of that fax you'll note that I wrote "This is not a waiver of my continuing objection to the continuance in the Smith case."

* Judge Jones: Doesn't the Court speak thru its orders?

Your Honor, I think the record can be used . . . Sir, this is why I stated that if this had been raised in the court below I could have dealt with it there - just as the order which was actually raised at trial was dealt with via a nunc pro tunc order because it was also wrong. I had put both the Commonwealth and Judge on notice that I had a continuing objection and I'd given them every single date within the speedy trial period as an available date. I have to give the court more dates than that and come to court when I am required. That doesn't mean I have acquiesced in the setting of a date outside the speedy trial period. Please note, the dates provided were also for all the other cases I had that term.

* Judge Jones: Was this a final order?

With the exception of a nunc pro tunc change.

* Judge Jones: Was it the final order of the case?

No Sir.

* Judge Jones: Then why didn't you file a motion to change the trial date order prior to the final order?

Honestly, it wasn't argued in the court below and therefore I never addressed it. The clerks in the Pitcairn court file pro forma standardized orders. I hadn't investigated that order since it's not required that one be filed - only that the record reflect the court's action and I had looked toward the continuing objection I had filed. I first took notice of this when the Attorney General relied upon it in the appeal.

* Judge Greene: After the 14 December date was a hearing held on the speedy trial issue?

Yes Sir. In that hearing the Commonwealth relied upon an argument that the 9 month period applied instead of the 5 month period because Mr. Smith was being held the entire time on a different charge in a juvenile detention facility. He also argued that I had agreed to the continuance on the original trial date but, because that was argued in the trial court I was able to establish that the order he was relying upon was incorrect and nunc pro tunc it.

I objected at every opportunity. I objected at the original trial date. I noted the continuing objection when I provided my dates. The next time I was in court was the trial date and I made my speedy trial argument at that time. With the trial court's leave I again made the speedy trial argument on the sentencing date. These were all the contacts I had with the court.

The trial court denied my motion because the judge felt the 9 month period should apply rather than the 5 month because Mr. Smith was in the juvenile detention facility serving time on a different charge.

If we move to this point, it's where the Commonwealth's case is weakest. If your read Price v. Commonwealth, which was adopted in toto by the Supreme Court of Virginia in Commonwealth v. Price, the case is a little complex but it's clear that one of the arguments relied upon by the Commonwealth was that Price was held on a juvenile probation violation and therefore the 5 month period was not appropriate. As I read the facts in that case, the defendant was in custody of the jail for 4 months when the speedy trial motion was made and had previously been in custody of a juvenile detention facility for at least a month. I think this was the basis of the Commonwealth's argument. Nevertheless, whatever the basis of the Commonwealth's argument was this court held that "It is immaterial that such custody coincided with the detention of the defendant incidental to the unrelated commitment."

For this point Price referred back to Funk and I also discussed the case law in Ford. These two cases are detainer cases and have been over-ruled by the General Assembly but at this time they were good law. Therefore, while there might be some question as to whether Price is currently good case law it was clearly the binding precedent at the time. I'd say it is still good law because Price didn't deal with detainers - it dealt with someone being held as the trial progressed. In any case Price was good case law at the time.

The test is whether the trial court can bring the defendant to court to answer to his charges. They could. They did. They just didn't do it until the speedy trial period had passed.

I'd ask that the case be reversed and dismissed. If there are no further questions?

* Chief Judge: No.

Thank you.

----------------------

Attorney General

* Judge Jones: Do we consider how Pitcairn does it in determining whether the speedy trial statute was tolled?

AG: No, per McCray v. Commonwealth.

* Chief Judge: Is the defense attorney at fault because he gave dates which were beyond the speedy trial date?

AG: Yes, Your Honor, he should not have given the court any days beyond the date on which the speedy trial time period ran.

Going further, what distinguishes this case from Price is the fact that in Price the judge had ordered Price remanded to jail. He was held at the juvenile detention facility but at the time he was also ordered remanded to jail. There was no remand to jail in the case at bar.

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Me: Going back to the first argument, I again assert that the reason it's the stronger Commonwealth argument is the fact that it was not raised and dealt with in the trial court. Addressing McCray, McCray is distinguishable from this case in that in McCray the defense attorney called the prosecutor's office and the prosecutor and defense attorney set the specific date between them. He affirmatively set the date.

* Judge Greene: How many days had passed on 14 December?

Sir, it was 144 days.

* Judge Jones: Don't you have a duty to inform the court of the date when speedy trial will run?

No, it's my duty to put the court on notice to my objection to any date beyond the speedy trial date and I did this on my fax to the prosecutor.

* Judge Greene: Did the judge have notice of your continuing objection?

I cannot be certain because the fax was sent to the prosecutor but I assume that he took it with him to set dates. In any case, the prosecutor bears a burden of making sure cases fall within the speedy trial period.

* Judge Jones: If an order is put in front of me and it states that it is with the concurrence of the defendant do I have a duty to investigate?

PROPER ANSWER (the one I should have given): The judge was at the setting of the case and knew I wasn't there to concur in it.

IDIOTIC ANSWER (yep, this is what I said): I wasn't there when the order was signed. In fact, as you can see it wasn't physically signed. As far as I know, it was stamped by the clerk and never seen by the judge. (OMG, how stupid can I be?)

* Judge Jones (incredulous): Are you alleging that this wasn't signed by the judge?!?

Yes, your Honor, it is technically signed by the judge. It's a stamp with s, a backslash, the judge's name typed, and the word JUDGE typed under it.

Your Honor, I'd ask to withdraw that answer. I have no proof of anything - it's speculation and inappropriate.

[NOTE: This may not have been the stupidest thing I've ever said in court, but it's close. A spur of the moment thought, it didn't forward my argument, it wasn't based on any facts, and could only serve to upset the judges. When I had some time today, I looked over a number of orders from this county and they are all stamped signatures. I can only assume that the Judge has a stamp on his desk and uses it instead of writing his name over&over&over&over. ENDNOTE]

* Judge Greene (grinning at me as I back-pedal furiously): You were answering a question so it's forgivable.

Your Honors, the signing of the order is not when the error occurred. It occurred at the actual setting of the date when the Judge and Commonwealth Attorney, who definitely has a duty to make sure a case is set within speedy trial limits and had received notice from me that I was continuing my objection in this case set the case outside the time period.

* Judge Jones: How do we know the Commonwealth Attorney wasn't relying on the same tolling which the Attorney General has claimed today?

He didn't take that position at trial. He didn't argue that. His only argument along those lines was that I had concurred on the continuance on the initial trial date. Because of that argument the other incorrect order in this case was corrected. He knew how the system works in Pitcairn County and, because of that knowledge I don't think he'd have made the argument the Attorney General makes.

As to the claim that I should only have given those dates prior to the running of the speedy trial period, I suspect that if I had done that we'd be here today on the appeal of my contempt conviction rather than my client's appeal. I was providing dates to the court for every case that term, not just Mr. Smith's case; I specifically made sure that I provided dates for every day within the speedy trial period.

* Judge Greene: You might not have been granted a writ on a petition in your contempt case . . . ;-)

I may not have, Sir. :-)

Addressing the 5 or 9 month issue, your Honors, per 19.2-80 there's a requirement that those charged be brought before a judge and either released on bond or remanded to jail.

* Chief Judge: Did you raise this in the trial court?

[NOTE: In her brief, the Attorney General had claimed that I had not argued this in the trial court. The defendant, unlike the government, is not allowed to argue something if it wasn't argued in the trial court (with some very, very limited exceptions). ENDNOTE]

Yes I did your honor. It's not raised as artfully as I would care for, but if you look on the bottom of page 67 of the transcript and go to page 68 you'll see that I reserved this point. We were arguing the 5 or 9 month issue and I pointed out that Mr. Smith was served a warrant and thereafter was either to be given a PR bond or remanded to custody.

I'll admit, your Honor, that I had to go and look up the number of the code. However, I did know this area of the law and argue it in the circuit court.

* Chief Judge: Thank you, Mr. Lammers. Your time has run.

At this point the judges came down, shook our hands, wished us well, and returned to the bench to call the next case.

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4/19/2006

Arguing in the Appellate Court Virginian

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