06 October 2005

A Day in the Life of a Criminal Defense Attorney

8 a.m. - I roll into the courthouse for my first case of the day. It's going to be a good start to the day because I know it's a slam dunk win. The case is called and my client is brought from lock-up. He's being show caused for not paying restitution in 2001. The district court only kept him on probation until 2003. The prosecutor's office asked for a capias to arrest him for not paying the restitution in 2004, a year and nine days after the court had lost jurisdiction. He was arrested in another jurisdiction this year and the capias was served on him.

Before the case starts I make a motion to dismiss, pointing all this out to the judge. The judge disagrees, stating that Client was supposed to pay the restitution in four months, didn't pay, and therefore the court has jurisdiction. I point out that the court had limited its jurisdiction and that this time had run a year and nine days before anybody did anything about it = the court doesn't have jurisdiction. "But Mr. Lammers, he didn't pay the restitution within the four months so the court retains jurisdiction." The judge and I go round and round about this and I get no where. As a last ditch effort I try pointing out that under the judge's interpretation the court would retain jurisdiction for all time (obviously not proper). At this point the prosecutor joins the argument comparing the unpaid restitution to an unserved warrant for someone not coming to court. I point out that that makes no sense but the judge isn't having any of it. He denies my motion and finds my client guilty.

Then comes the sentence. The judge revokes my client's suspended time and resuspends all of it except 30 days. He then sets as the sole condition of the remaining suspended time that Client pay the restitution and puts Client on probation for three years. Just little perturbed, I have to bite down hard on my tongue to keep from saying "Your Honor you've just proven my point. If you actually believe that in matters of restitution the court retains infinite jurisdiction you wouldn't have set a time limit for probation based solely on payment of restitution." I ask for an appeal bond and the judge sets it in the amount of the restitution.

Then I go back into lockup and talk with my client. I am not happy and want to appeal this to the circuit court so badly I can taste it. Client has served more than the 30 days and will get out today if he accepts the judge's decision. Anyone out there want to guess whether I got to appeal the case?

8:45 - I go over to the next courtroom for my next case. It's a show cause (for failure to complete community service and failure to pay restitution) and a misdemeanor failure to appear in court. We come out and plead guilty. I explain that client believes that he had done all of his community service but that the last six hours weren't credited to him because he signed in but forgot to sign out. I point out to the judge that Client has already served over a month and that he has a job ready when he gets out so that he can start paying the restitution. I suggest that the judge give him a total of a month in jail. The judge states that he believes Client is not taking any of this seriously and revokes Client's suspended time and resuspends all but six months. "Mr. Lammers, I may look favorably upon a motion to reconsider if the restitution is paid."

9:30 - I go to the circuit court for a de novo appeal of a trespassing case; it's a citizen complaint which means warrant did not issue on the sworn statement of an officer but on the word of a citizen. In general district court my client was convicted of trespassing but the judge low-balled the punishment, taking Client's case under advisement for a year (to be dismissed if no further trouble). Client insists he is innocent and demands an appeal. The first appeal date he missed court and the judge issued a show cause. When I get up to the courtroom I find out that Client has been arrested that morning when he arrived in court; when they were unable to successfully serve the summons for the show cause the judge changed it to a capias. I give the prosecutor a chance to back out before trial but he declines.

The case gets called. Client pleads not guilty to both the trespass and the show cause for failure to appear. The prosecutor calls his only witness. She's about 50+ and slowly hobbles up to the witness stand, leaning heavily on her cane. She wheezes a little, coughs every so often, and seems to be trying to look pitiful. She tells how Client used to date her daughter but doesn't anymore and that he's now banned from her property. She tries to get off point to raise all sorts of other things but after a couple objections she stays on point (with some herding by the prosecutor). Then she says that she was awake in the early morning hours of 15 January 2005 and saw my client drive his car into her driveway. At the door, she saw my client, he saw her, and he pulled out and drove away. The prosecutor asks her what time this happened and she stated 3:44. The prosecutor tries to see if there is any play in this but she holds fast. She saw the time on the kitchen clock when she went to wake others in the house, she noted the time on a tape recording she made to turn over to the police (the officer called refused to go swear a warrant), and the clock is never wrong about the time. She also states that she was the only one to see Client.

Then I cross her. She admits that she was 150 feet from the vehicle she saw it. She admits that the headlights were on. Finally, she clarifies that the event actually occurred the night of the 15th and morning of the 16th (meaning it actually occurred on 16 January 2005 at 3:44 a.m.). At first she repeats that it happened on the 15th "because we went to the magistrate on the 16th." I ask her if she went to the magistrate when she woke up the next day and she says "Yes" and agrees that this meant the event actually occurred on the 16th.

Next comes my turn to call witnesses. I call my client's former boss. She testifies that my client was working as a pizza driver and worked a double shift on the night of the 15-16th. She has records (which I move into evidence) showing that he clocked out at 3:54 on the 16th.

The prosecutor crosses and it comes out that in order to clock in Client had a number and code to enter into the computer but that only a manager could clock him out after he finished work and turned in all his money.

With that, I close my case. The prosecutor waives his opening argument. As I stand up to close the judge asks me about the failure to appear. I start to proffer that Client had mixed up a couple court dates but the judge starts asking indepth questions so Client has to go the stand and testify that he had a date for a speeding ticket and a date for this court, he went to the wrong courthouse, and he was really upset when he found out he'd missed the last date.

Then I get to argue. I point out that client was at work and couldn't have clocked out without his manager, that there was no way he could have driven from his job in the middle of Richmond to the complaining witness' suburban house in less than 30-45 minutes (if he sped), and that he got off work after the alleged incident had occurred. The prosecutor gets up and starts hammering away at the fact that the manager of the pizza place wasn't in court to say he saw Client at work; all we had were records which could have been entered by anyone. I object to the prosecution's insistence that the defense produce the manager: "Your Honor, it's the prosecution's job to prove guilt." The prosecutor then mops the floor with me for a couple minutes, pointing out that an alibi is an affirmative defense. He starts goes on and on about how his office had no notice of this defense; I start to object (they had notice because it was the same defense relied upon in general district court) but I let it go because the argument doesn't look like it's getting any traction.

The the judge rules: "Mr. Prosecutor, I tend to agree with you." At this point my head pops up. My client has won; if Client were going to lose the judge would have started out by telling Client what a great job his defense attorney had done. "I think there is a strong suspicion, no, a strong probability that Client did what Ms. Smith says he did. However, as we all know, that's not the standard. Therefore, I find Client not guilty. I also find him not guilty of the failure to appear in court. His story is suspicious but nothing rebutted it." He then warns Client not to go to that property ever. Client's thrilled but still has to go over to the jail for processing (because the capias was served on him) before he can be released for the day.

And so ends another Day in the Life.


Anonymous said...


I don't know about Virginia, but Kentucky has case law saying that jurisdiction over probation lasts until all conditions are fulfilled. I had a case one time where the Judge sua sponte ruled that since restitution had not been paid, he still had jurisdction to revoke the defendant's probation. This was even though both the defense counsel and prosecutor held the opinion you do as to length of probation. The Judge had researched the point and found law to back up his position.


Ken Lammers said...

I've made this argument several times and seen it made several more. The only other time I saw a decision like this was when a judge ruled that a capias request the day after probation was over should stand because "otherwise a person on probation could do anything they want on the last day of probation knowing he could never get violated in time." All the others have gone the way I obviously think the one above should have gone.