20 April 2004

A Week in the Life of a Criminal Defense Attorney

Monday: I spend the morning researching a brief. The afternoon is blocked aside for jail visits; the plan is to hit three of them visiting several State inmates and two federal inmates. I go to the local county jail and visit two guys but the third has been transferred to a regional jail in Hopewell, Virginia which I had no intention of visiting. But I have to go there because the guy is getting sentenced the next day and I have to go over his pre-sentence report with him. So I drive about 40 minutes further south and meet with him. The meeting takes a while for reasons I cannot go into because of privilege. Finally, I get out of there and head North driving about 1 1/2 hours north (past Richmond). It's going to be close but it looks as though I'll make it before the jail shuts down at 5 p.m. Then traffic on I-95 just stops. It takes me about 40 minutes to get to the next exit so that I can jump on some country road and try to wend my way to the jail. But it is too late. So I go off to a local eatery and kill time (I didn't even know that Ponderosa Steakhouses still existed) until the jail reopens at 7 p.m. When the jail opens I meet with my client for a relatively short period of time and come back out. I am tempted to try to make it to the last jail but it is at least 1 1/2 hours away and the sky has gotten pitch black with torrents of rain and heavy winds. I decided to go home. Half way there I am driving down I-95 with a semi in front of me, a semi to the left of me and a concrete barrier to the right of me when my driver side windshield wiper jams. Suddenly all I can see are blobs. Hitting my blinkers, I slow way down and luckily there is a break in concrete barrier for an off-ramp. I pull into the parking lot of a seedy hotel and fix my windshield wiper in my suit, in the pouring rain. Then I drive home wet and worried the whole way that the dang thing will screw up again.

Tuesday: I learn a very important lesson on this morn. Just because the feds have my client scheduled for a hearing at 8:30 that doesn't mean he'll be at the courthouse any sooner than 8:15. I arrive, to the incredulous looks of the marshals guarding the front door at 7:45. And then I wait around, go eat some breakfast at the cafeteria, and wait around some more. Finally my client arrives and I talk to him. Then at 8:30 we go into court for an arraignment. It's pretty much pro forma, all my client has to do is say "not guilty" and "jury." He screws it up. But eventually we get it all squared away. Then I have to go over to another courtroom for a guilty plea pursuant to a plea agreement. This actually goes pretty well although the judge asks my client about 500 questions before he accepts the plea agreement. The only rough spot is when the judge asks Client if he knows the maximum penalty for this offense. Now, I went over the guidelines back and forth with this guy but, for the life of me, I can't remember talking to him about the max outside the guidelines. I must have because Client just barks it out like he'd spent the night memorizing it.

Afternoon: One of my charges fails to appear in court for her sentencing. The other is brought to court by the Sheriff's Department. His mother testifies about how much he has changed since he has been in jail. I get up and try to convince the judge that my client (a long time convict and drug addict who stole and cashed checks from his mother) has changed. He was a trustee, he found Jesus in jail, and he has children to whom he has commitments - including one son who was killed while my client was in jail. The the judge asks my client if he has anything to say before she pronounces sentence. He stands up and gives what can only be described as an eloquent, 5 minute long sermon about how he has surrendered his life to Jesus. At the end he asks for leniency. The judge gives him a very studied look and chooses her words carefully: "I never challenge when someone tells me that they've found the Lord in jail. I hope it's true and once this is finished that you will continue to devote your life to Him. However, I often wonder if true Christians would not simply accept their portion in life and not always ask for leniency." Then she sentenced him to 3 months longer than the mid-point (recommended sentence).

Wednesday: The morning is spent completing a brief for a court explaining why the court has no jurisdiction. In the afternoon I jump in my car and drive to a jail 2 1/2 hours from my office. When I get there I find out that my client's parents have hired another lawyer and I turn around and drive back, a little less than happy. After the five hour boondoggle, I spend the rest of the night finalizing taxes. I miss the 8 o'clock deadline at the local post office so I have to drive into some part of Richmond I'd never seen before to drop off the returns. As I roll down my window to hand the posts to the friendly local postmistress, a Libertarian tosses a flier in my lap telling me that taxes are theft. Hmmm. . . I think it is more like a robbery: taking the property of a person by force or threat. Don't believe me? Try not paying Uncle Sam for a few years and see if he doesn't become forceful and/or threatening.

Thursday: In the morning I go to court for a client charged with grand larceny of a truck and driving on a suspended license. Personally, I don't think the prosecutor can prove the larceny because the truck's owners are in South Carolina, already have their truck back, and are rumored to be illegals. They've got my client dead to rights on the driving suspended. I wait around all morning because the prosecutor won't talk to me about the nuts and bolts of the case until the Trooper comes to the criminal courtroom and the Trooper is stuck in traffic court. Finally the Trooper comes over and huddles with the prosecutor and I'm pretty sure the prosecutor comes to the same conclusion I have. So the prosecutor offers to drop the grand larceny to a petit larceny with 30 days jail, along with 30 days jail for the driving suspended. My client has already spent more time in jail than the prosecutor is offering and jumps at the deal.

In the afternoon I have two cases. In the first Client X is charged with his fourth driving on a suspended license. When court starts we approach the bench and ask for a continuance so that Client X can try to get his license in order. The prosecutor objects and the judge turns down the motion.

I go next door and try to get some sense into the head of the prosecutor and street-drugs officer so that they will drop Client Y's possession of marijuana (with intent to distribute) to simple possession and all suspended time. The prosecutor is new and bends to the officer's desire that the charge be kept the same. So I sit around waiting to plead Client Y not guilty (in our local courthouse your reward for pleading not guilty is to have your case called at the end of the docket). I have filed a motion to suppress the evidence because it was obtained in violation of the Fourth Amendment. Since a dog sniff was used to I intend to argue that under Caballes, and Kyllo, and the decisions out 5th and 9th Circuits (well, okay, maybe I wouldn't have mentioned the 9th in an argument in Virginia) a canine sniff of a human is a search. It's a fairly complex argument and the way that General District Courts usually handle complex arguments is to let you argue it on the Defendant's de novo appeal of right to the Circuit Court. So, I'm not really expecting a win but I'm prepped, a little jazzed about the idea of making a real legal argument, and determined to go down swinging. During a break I end up in a friendly argument with about 4 members of the street drug unit as to whether the way that drug dogs are currently used should be unconstitutional. Finally Client Y's case is called. I go up and point out to the judge that I have a motion to suppress. The prosecutor suggests that we do the motion as part of the trial and argue it at the end; I agree and we start the trial. I look over and there's no canine officer. So when the street drugs officer starts to testify that the dog alerted on my client I object and the judge doesn't let him testify as to that because he's not qualified. The officer testifies to everything that occurred other than the things involving the dog. At the end of the evidence the judge looks down and asks the prosecutor if he has any argument as to probable cause which does not involve the dog. The prosecutor tries but there really isn't any. Then the judge looks over at me: "Well, Mr. Lammers, I know the argument you are going to make and I agree. I suppress the evidence and dismiss this charge." NO, No , no . . . the argument I came to court to make involved high-minded constitutional principles and cutting edge application of federal case law!!! I didn't come in to win on evidentiary grounds. I want to make my argument! OF COURSE, I don't say any of this to the judge and I escort Client Y out of the courtroom. Client breaks down crying after we get out.

After I calm down Client Y I run back over to the traffic court for Client X. The officer isn't in the court room and finally, Client X is the only one left in the courtroom. The prosecutor does a quick check and finds out the officer isn't even in the courthouse. I stand up and move that the judge dismiss the case because my client has had to sit three hours in the courtroom after taking time off work, arranging a ride, and riding two hours from his home to face the charge. The judge turns to the prosecutor and asks him what his position is. The prosecutor says to nol pros it (dismiss without prejudice) and they will just issue another warrant later. Everyone in the courtrooom knows this is a form of blackmail; I either agree to a continuance or my client, who has already paid a couple hundred dollars to a bondsman, will be rearrested at some random time in the future, required to go to jail and ask for another bond, and (if granted a bond) forced to pay a couple more hundred dollars to get his bond covered. The judge starts to do this and I get just a wee bit upset.
Me: Judge, we made a motion to continue this case at the beginning of the afternoon. He has kept my client here for hours, and now . . .
Judge: No, Mr. Lammers the Court kept your client here. He's not responsible for that.
Ouch. While that's not exactly true (the prosecutor should have continued the case much earlier if his witness was not going to be in court), there's no way I'm winning. After a little more maneuvering I give in and we continue the case for a month until the officer's next date.

Friday: I go to the local police station in the morning and spend about three hours watching a client's videotaped interviews with the officers. The first is pretty bogus. The second is a full confession. I also talk to the detective in charge about the case. The case is a nasty 3 X robbery, 3 X abduction, and 3 X conspiracy which is related to a murder. Between researching the law of the charges and checking the facts and discovery, I have spent a lot of time prepping this case. The preliminary hearing is set for Monday afternoon. I am ready. Naturally, on Friday afternoon another lawyer calls and tells me that my client's parents have hired him (I had been appointed by the court). Dad just was not happy when I told him that his son was going to get convicted on two of the charges. I send all my research to the "paid lawyer" so that the client is not screwed when this guy goes into court cold (there are too many Defendants and lawyers involved so there is no way he's getting a continuance). Not to say that the guy is a bad lawyer; it's just that anybody hired on the last working day before a case of this complexity is not going to be able to get prepared in time.

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