27 July 2004

Dies Veneris

Friday: At 8:30 I arrive at the local courthouse. I’ve got to deal with my two general district court cases fairly quickly because at 9:30 I’m due in circuit court and I’ve a case in another county at 11:00. Of course, the officer in one of my cases is in juvenile court and won’t even be over to general district until 9:00. The prosecutor won’t do anything with the case until she talks with him. So I try to get my first case called. However, the docket is running slow and at 9:25 I get up to tell the clerk not to call my case until I finish my time in circuit court and come back downstairs. That very moment a case is completed and knowing I am on a tight time schedule she tries to do the right thing by calling my case. At this time I should ask for the case to be passed over but I figure that the case really shouldn’t take 5 minutes. After all, it’s just going to be the prosecutor dropping the drug charge and my client waiving her prelim on a felony failure to appear (nothing to have a prelim on; I know the facts because I was there the day she failed to appear, waiting for her). Of course, things go wrong right from the beginning. As soon as I tell the judge what we’re doing he informs me that there are two other charges: a driving on suspended license charge and a capias for absconding from pre-trial services. After a quick moment of discussion my client pleads guilty to the driving suspended and I point out to the judge that the capias1 wasn’t for contempt and therefore carries no penalty and need not be pled. We then spend the next ten minutes looking through statutes because the judge believes that all capiases carry the possibility of an additional jail sentence. Eventually the statutes do not support his contention; I still don’t think he believes me but he let it pass. Then I make a mostly pro forma motion to set a bond for my client. Under Virginia statutes there is a presumption that my client is not to get bond and most judges would have just cited that to me and been done with it. But no, this judge actually considers the equities and goes back and forth for a couple minutes before he decides that Client should get a $15K secure bond because her original charge had been dropped. He’s considering factors I wish a lot of other judges would but he’s killing me with all the time he’s taking. Finally it’s all done and I bolt out the back of the courtroom to the nearest stairwell in order to get to circuit court.

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1 Capias is just a court order to bring someone into custody. However, there are a number of people out there who think that each and every capias carries a contempt charge with it. They don’t.
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I finally get up to the circuit court 15 minutes late. The deputy at the back jokingly scolds me for not getting to court on time but the judge is magnanimous when I apologize: “Mr. Lammers, these things happen to everyone once in a while.” So then I sit thru pre-trials and pickup a couple show causes which both look like train wrecks (most show causes do). One guy is being show caused because he has been charged with felonies in 4 other jurisdictions.

After finishing pre-trials in circuit court I come back downstairs for my final district court case. Client is a kid who got so drunk he fell asleep in the middle of a road. Police find him and have to work really hard to wake him. When they finally do the kid gets belligerent, refuses to believe that these people standing in the county’s distinctive green uniforms are police, and “obstructs justice.” In the process of obstructing justice his head gets a nice big gas over his left eye and the eye itself is swollen as if a blow had landed. He even went to the hospital that night. Nevertheless, there is going to be no trial; Client is, on his own accord, pleading guilty. Once the officer arrived we came to a pretty quick resolution: Client pays a fine and gets 30 days suspended time. So we do that and after a few comforting words to Client’s parents I jump in my car and drive [in a safe and sane manner, obeying all the laws and speed limits] to get to the courthouse the next county over.

I get there five minutes late but it really doesn’t matter. Court is running far later than I am. It turns out I’ve got one more case on the docket than I thought I did but I prepped it up a while back so I’m ready for it. In the end all my client does is waive his preliminary hearing for eluding a police officer and felony driving when Virginia told you not to charges. I tried to talk the prosecutor into dropping one of the charges but when the deputy told him about Client driving 85 mph on dirt roads and 120+ on paved the prosecutor decides he’s not going to cut my guy a break. So Client’s charges get certified to the grand jury.

Finally, at the end of the docket, the case I came for is called. Out of a group of 20+ kids at Beaumont who were involved in a riot 5 are facing charges of assaulting a juvenile corrections employee with the intent to injure (up to 10 years prison) and I am representing one of them. The only problem is that one of the lawyers isn’t there. So the prosecutor asks the judge to go forward on 4 and schedule the remaining one for another date along with a show cause for the attorney. At this point the kid without a lawyer speaks up and says that he wants to represent himself. The judge asks the prosecutor his position on it and he says it’s the kid’s right to do so. Now that varies from my understanding of the law2 but he’s not my client so it’s not my place to speak up. The judge asks the kid a couple vague questions like “Do you understand what you are charged with?” - “Yes.” Then she sits there for a couple minutes mulling it over. Meanwhile, the prosecutor asks me what I think and I ask if the kid’s ever even read the statute. Then the prosecutor starts talking with another attorney about the case and she tells him a couple concerns she has. At this point the judge starts fussing at the Defense attorneys for raising objections without standing so we shut up. Finally, she decides that the kid can represent himself. So then the preliminary hearing begins.

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2 My understanding is that once someone has an attorney - especially a court appointed attorney which he had to ask for - he has waived his right to represent himself and it is within the sound discretion of the court to decide if he has the ability and resources necessary to represent himself.
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The prelim isn’t all that complicated.. The kids were all at mess and the guards got upset because they were taking too much salad. A confrontation ensued and the kids were told they were going to be punished. At this point one kid gets up, walks around, and finally throws a table over. When that happens everybody goes nuts and each guard ends up in a fight with numerous kids. Most of the evidence doesn’t involve my kid directly so I don’t ask any questions until the last guard who testifies that my client hit him in the nose. Just as the guard starts to testify the prosecutor looks up at my tape recorder (which is over there so it can actually pick up the testimony) and tells me it is not working. Throughout the hearing I see him reaching up and tapping the recorder to get it working again. At the end of the hearing I pick it back up and somehow the voice activation switch had been hit so it would only record when there was noise. I haven’t listened to the recording yet but I expect it will go something like this:
and that’s what I did. THUMP THUMP . . .
and that was why. THUMP THUMP . . .
At the end of the hearing the first couple lawyers made pretty strong arguments for the dismissal of their clients’ case. The prosecutor makes a it very clear to the judge that no matter what she does he’s going to take these cases to the grand jury. While there are serious problems in the prosecution of my client’s case it does pass the probable cause standard so I submit the case rather than telling the prosecutor the flaws.3 In the end, two of the cases should have been dismissed (three if the kid representing himself had known to object to hearsay). Nevertheless, the judge certifies them all

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3 Unfortunately, as I know he reads this blog, I am unable to tell you good people what the flaws are either.
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After all that ends I spend the early afternoon trying to get some subpoenas expedited. They’re late because of a misunderstanding between me and a client as to what his plea is going to be. The clerk isn’t exactly thrilled with me but agrees to get them out to the sheriff today. Now I can only pray that they are served in time.

In the late afternoon I have two appointments and by some miracle they both show up. I think this fulfills my quota of clients who actually show up for their appointments for at least a month.

Thus ends another week.


Anonymous said...

Hearsay is prohibited at prelims in VA? In Colorado, all evidence at prelims is generally submitted in the form of hearsay testimony from investigating officers. Hearsay and other rules of evidence do not apply.

Ken Lammers said...

I've heard of some few jurisdictions doing that here in the Commonwealth but it is not used in most.

Yes, hearsay objections are allowed. I generally make very few because I want to hear everything I can from those few witnesses the prosecutor actually puts on. Required discovery in Virginia is slight. In some jurisdictions the prosecutors are good about it and basically have open files. In other jurisdictions you have to fight to even get your client's record. I know that 99% of the time the judge will certify; my main objective is to get as much useful information as possible.

Virginia case law states that the prelim isn't a discovery device but that's exactly what it really is. Even if I fight tooth and nail and the judge dismisses all the prosecutor has to do is direct indict. So Defense counsel don't raise many objections and they ask as many questions as they can before the judge shuts them down.