07 December 2004

And So It Begins . . .

Lately All Things Have Been Quiet on the Virginia Front. There have been no great, hard fought battles wherein complex legal matters are at stake.

However, I knew they were coming. I knew that as of this Thursday I would be arguing a case involving the chemical composition of something I claim is a liquid and the prosecutor swears is a gas. I knew that next week I had an argument as to whether my client could have refused to return a rental car while he was in jail. I knew that I also have a 4th Amendment argument for next week. Other arguments loom in the future. And then, from out of left field . . .

I come into court today with a client charged with malicious wounding. From conversations I've had with the client and the Detective when I first got the case, I'm thinking there is a good chance this might go away completely because of self defense; perhaps the prosecutor will offer a lesser offense such as A&B or unlawful wounding. So I walk up to talk to the prosecutor and she tells me that the charge is being changed from malicious wounding to aggravated malicious wounding because some nerves were damaged.

Holy Crud!!! My client's exposure has changed from 5-20 years (with a realistic expectation after suspended time of setencing guidelines between 2 - 6 years) to 20 years to life (with a realistic expectation after suspended time of sentencing guidelines between 5 - 11 years). A case which, at the start of the day, looked fairly typical has changed into a potential disaster in the making.

Waiting for the preliminary hearing I come to the conclusion that I need a court reporter here for a case with a potential life sentence. In most cases a tape recorder would be used but the Virginia Court of Appeals has called that practice into doubt in Yarborough. So I go ask a couple questions of a lawyer who has been practicing much longer than I have and decide I must ask for a continuance so that I can petition the circuit court for a court reporter (the circuit court approves the use of court reporters for indigent Defendants in inferior courts).

I walk in and tell the clerk I need to make a motion in this case. A couple minutes later the clerk calls it. About 6 witnesses walk up on the prosecution's side. This is not good because the judge will not want to continue a case which will inconvenience that many civilians.

"Your honor, the Commonwealth attorney has been kind enough to tell me that she is going to amend my client's charge from malicious wounding to aggravated malicious wounding and I have to ask for a continuance to get a court reporter."

The prosecutor, obviously not happy, comments on the fact that I had plenty of time to ask for a court reporter prior to this date and even offers to lend me a tape player.

"Your honor, the maximum penalty has gone from 20 years to life. I feel that I need a court reporter here."

The prosecutor then points out that she has not amended the charge and we could have the preliminary on the malicious wounding. She would just wait and direct indict later. I can't remember saying anything after that (I'm sure I said something); I just remember standing there and looking at the judge.

The judge looks down with a quixotic look. I can never get a full read on this man. He looks a little like he's torn; he looks a little like he's surprised I am doing this (I'm not certain this judge thinks I'm very competent); he looks a little resigned; he maybe even looks a little confused; however, he doesn't look upset.

"He already knows the charge is coming. Out of an abundance of caution, I'm going to continue the case. Mr. Lammers, you know that you have to arrange this through the circuit court and have the court reporter here on that day?"

I assure him I do. Then comes something I didn't expect.

The judge says to my client: "You've got a good attorney and it looks like he's digging in and fighting for you. You make sure you stay in contact with him."

So at the end of the day I have a very serious case, a prosecutor with whom I have probably burnt some bridges, and a judge whom I still cannot figure out completely. We'll all have to come back in January and see what happens.


Mister DA said...

Jiminy Cricket! Or even Godfrey Daniels! You don't have court reporters at PC hearings!? The prosecutor was going to lend you a tape recorder!? How the heck does that make an official record? Doesn't the court keep a verbatim record of its own? I mean, we've had a nasty infestation of video courts in the last few years, but at the very least there is a certified video clerk logging times and names and exhibits and such like, and a honest to God certified court reporter of one sort or another has to prepare the record. How can it be a court of record if no one is keeping a record?

Maybe I'm misunderstanding the seriousness of the proceeding. In my state, this is how the general jurisdiction court gets, well, jurisdiction -- when the arraignment court judge determines there is PC and sets the matter on for arraignment by the higher court. That determination follows a contested hearing where the rules of evidence apply, etc., or a waiver of the right to the hearing by both parties. How can the trial court possibly review that proceeding without a real record?

Ken Lammers said...

Actually, I think that what probably happened is what happens in this type of case every so often. Aggravated malicious wounding requires permanent, severe injury. The prosecutor didn't swear out the original warrant and on the day of the prelim (or maybe the day before) finds out the condition of the complaining witness. So she tells me when I came in what she had found out just recently herself.

It was suggested to me (not here) that perhaps she was posturing in order to put the prosecution in a better position in plea bargaining. I don't think so; I've done a number of cases with her on the other side and she's been pretty straight forward with me. Anyway, it's not a particularly effective way of dealing with me because if I'm told something like this I tend to take people at their word and move forward on the assumption that it will happen.

I think it was all pretty much a case of mutual trauma. I was shocked when the case suddenly went off the deep end and she was surprised when I reacted as I did. We both did what lawyers do when they are startled and dug in our heels.