23 February 2004

A Week in the Life of a Criminal Defense Attorney:

Sorry I missed this feature last week. Someday maybe I'll get back to the client who was mad that I didn't get him out of jail to go to his son's funeral, the client who pulled out a three page (front & back) manifesto at her sentencing hearing, and/or the prosecution witness who "forgot" everything which he testified to in the prelim because he knew his lies in the prelim would conflict with the lies he was telling in Circuit Court. Someday.

Monday: It's supposed to be a holiday so I only spend half the day at the office. At 3 p.m. I meet with a new federal client and his mother. Can't really tell them too much because the indictment doesn't have weight included in the drug charges so I don't know what the guidelines or mandatory minimums might show.

Tuesday: Around noon it starts snowing. I go to court in the local general district court at 1 p.m. but my client wasn't able to get down from Boston because of the weather. As soon as the case is continued I book for Richmond to get to the federal court. All the parking (including the paid lots) near the courthouse is occupied. I finally find a spot 6 blocks away and walk to the courthouse in a snowstorm. By the time I get there I am sopping wet.

I get to the courtroom with about 15 minutes to spare and there stands client, mother, and father whom they had not informed of this matter until the night before when Client needed to borrow one of his suits for court. Father spends the next 5-10 minutes quizzing me about my qualifications. Finally satisfied, we are standing around talking when an AUSA walks up and starts talking with me. The parents and Client start to talk with him as well but I cut them off and ask them not to. Seeing shock in their eyes at my effrontery, I explain that he's a prosecutor which mollifies them. Nevertheless, Father turns to the AUSA and apologizes: "I'm sorry man. I didn't realize you were a prosecutor. I thought you were a lawyer." Shortly thereafter we are called into court and arraignment occurs. It turns out that the amounts of drugs in play are miniscule - the kind of stuff that even State courts wouldn't be all that worried about.

After Client and his parents leave, I am standing there talking to the prosecutor when he mentions that he saw that one of my other court-appointed clients had hired another attorney. It was news to me so I trudged up to the clerk's office, checked the file, and there was a letter telling the court that another attorney was taking over the case. Not really a huge problem (Client had not been in contact with me for weeks) but unusual in that the other attorney hadn't even contacted me (the motion for substitution turned up later in the week in the mail). Thankfully, by the time I have finished with everything the snow had stopped and the walk back to my car was dry.

Wednesday: A sentencing hearing this morning for an elderly man who is very hard of hearing. This leads to a surreal hearing wherein the Judge and I are pretty much yelling in order to be loud enough for him to hear us. In the end it turned out well enough. Client got 6 months in jail which was less than a third of what the guidelines recommended (because of a serious felony 30 years ago).

Thursday: No court today so I spend a fair portion researching a case which I expect to be hired on Friday. I can't find the historical statutes which I am looking for so I call a buddy who handles even more traffic law than I do. He isn't much help but he points out that the court doesn't have jurisdiction to be doing what it is. I research the point and it looks like he's correct so I prep that argument for court.

Friday: Client shows up at the courthouse and pays me on the spot. Shortly thereafter (at least within a couple hours) we are called before the bench, Before we even plead I launch into my explanation of why the court doesn't have jurisdiction (admittedly this discussion is cleaned up some):
Me: Your honor will notice that when the court convicted my client of DUI in 2001 it suspended his 30 day sentence, suspended his license for a year and ordered him into VASAP (which he had to do in order to get a restricted license). The court also kept him under supervision for 12 months. He failed out of VASAP and had his license revoked. Then in 2003 DMV refused to renew his license and he came back before this court. He shouldn't have - it should have been a private matter between him VASAP and DMV. The 12 months of continued court involvement through supervision had already passed and the court's ability to amend the sentence (and add longer court supervision) ended 21 days after he was sentenced. He's now flunked out of VASAP again and they have asked this court to show cause him. The court didn't have jurisdiction to send him back and therefore it doesn't have jurisdiction today."

Judge: "The Supreme Court tells me that as long as he hasn't completed VASAP I retain jurisdiction."

Me: "There's case law on that?"

Judge: "No, I called the Supreme Court's researchers and they told me." [ed. note: I didn't know the Supreme Court did this and let me tell you how thrilled I am to find out that some part of that august body may be directing judges as to what the law means in a way that I can't access or advise my clients about]

Judge: "And, didn't DMV send your client back to the court?"

Client: "Yes."

Me: "The DMV is not a source to be relied upon for interpretation of the law."

Judge: "Well, if the sources are the Supreme Court , me, and DMV I think it's pretty safe to assume I have jurisdiction. I take it you're going to disagree with me?"

Me: "Yes."

Prosecutor: "Great, we've got a test case! Why don't you find him guilty, sentence him and give him a PR bond so that we can argue this indepth in the court above?"
At which point the judge did just that. And I appealed. All in all, considering the fact that I was standing there telling a judge that I thought she had made a mistake and that I thought her interpretation of the law was wrong, it remained amazingly cordial. The judge even asked me to be sure that I told her how it came out.

The afternoon was a little dull. Open office hours resulted in one client not showing for a scheduled appointment and one client dropping by and chatting for over a hour. I really didn't have much of anything new to tell him but we went over everything again anyway and it killed some time.

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