21 August 2004

Frustrating Day

I go to federal court this morning in order for my client to get sentenced. It's not as bad as most, he's facing 24-30 months for a small crack distribution. He didn't even have it on him - when the undercover police approached him he had to go down the street to get someone who actually had some. Then, after they indict him nobody bothers to go pick him up (eventually he is picked up when an officer decides to check his ID for just walking down the street) and in the ensuing two years he's gotten in no trouble.

Sometimes I wonder about the sense of perspective of those in the federal system. I looked at my client's record and compared to most I get it's a pretty minor record with only one felony event 20 years ago. Now that's not to say there's nothing on it - he has the typical little convictions you find on the records of those whom the presentence reports label "common laborers." Every couple years there's a driving with a suspended license charge or some other minor misdemeanor offense and sometimes he even spends a few days in jail. I regularly represent guys with 5 or 6 felonies and I've even had people with over 20 felonies on their record. My client's record isn't bad enough that it would get much, if any, attention in most State courts I practice in. Nevertheless, prior to the hearing the prosecutor is talking to me about how bad my client's record is. And then the judge mentions the same thing while sentencing my client. Huh?

Anyway, the judge sentenced my client to the low end of the guidelines and then stated that the sentence would be exactly the same if the guidelines are completely unconstitutional because the guidelines were an appropriate recommendation even if they weren't binding. While it really wouldn't apply in my client's case, I wonder what the entire 4th Circuit is going to do if the Supreme Court rules that only the upward adjustments are unconstitutional. It is going to be a mess.

But the annoying thing was that I screwed up a court procedure. It is a little frustrating to go into federal court because I don't get enough work there to be in the courthouse all that often. This doesn't really effect how anything turns out but it does lead to piddling little mistakes. I know sentencing hearings in the Commonwealth's courts inside and out. There are 5 stages and the attorneys actively partake in the first three, each in the same order: prosecution, Defense, prosecution rebuttal. The first stage is a discussion of the presentence report and any possible errors therein. The second stage is the presentation of any evidence. The third is argument over the sentence. 4th is Defendant statement. 5th is the actual sentencing by the judge.

So the hearing starts and the AUSA gets up and says "We have no objections to the report and we stand by our filings." I stand up and say I have no objections to the presentence report. Then I wait for the prosecutor to see if he wants to put in any evidence. The judge prompts me, asking if I have any evidence. So I have my client testify and sit again. The judge prompts for argument and I look over at the AUSA to see if he's going to argue anything and the judge prompts me, "He said he was going to stand by his filings." So I get up and argue. There were no real glaring errors or anything, it didn't effect the outcome, and I don't even think it registered with my client. I just hate being in court making stupid little mistakes while the judge looks at you quizzically.

When I leave the federal courthouse I burn rubber to get to the courthouse in the county I usually practice in. I figure I'm probably late and might actually be the last case left. However, the local courthouse has recently started scheduling all the drug task force's cases on Fridays so the court room is so packed that they have two prosecutors in there spelling each other and they are still running with a full courtroom when I get there. I have to wait a hour until my case is called. We do the preliminary hearing and the prosecutor's case for attempted robbery and use of a firearm in attempted robbery is weak but it survives the prelim. It will make for an interesting trial.

In the afternoon I go off to the jail to visit a client and find out something which really p.o.'d me but I cannot talk about it (at least not yet). By the time I finish I get back to my office after 5 p.m. I spend a couple hours doing paperwork and call it a day.

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