The evidence goes forward and the prosecutor calls the owner of the house. Owner testifies that Client lived there with his son. Son is currently serving time. Owner states that several times in the past year he told Client that she could no longer live there. However, he admits that she has lived at the house, on-and-off, at times since he told her to leave. He says that about three months ago Client got out of jail and came back to the house drunk; she says "I'm home!" and heads back to "my son's and her room." Owner says he told her to get out that night. Four days later Owner went to the magistrate and swore out a warrant for trespassing. He's the only person who testifies (on either side).
First we take care of the failure to appear charge. I point out to the judge that the underlying trespass warrant does not have the sections checked which indicate that the misdemeanor warrant was served on Client as part of her arrest or that she was served the warrant and told to come back for a pretrial hearing (the FTA is for missing the pretrial hearing). I also point out that the section which she is supposed to sign if the warrant is served and she is released is blank: no signature or indication of refusal to sign. I tell the judge that there is no evidence that client was ever even served the warrant and therefore cannot be held responsible for failing to appear. The judge hems and haws about this for a little bit; it's pretty clear he doesn't want to dismiss. I explain it to him a couple times and he gets it - he's just not happy about it. Finally, the prosecutor asks to see the underlying warrant. She checks to make sure it is as I've described it and then moves to dismiss. At this point the judge is satisfied and dismisses the failure to appear.
Then we move on to the argument about the trespassing. My argument basically boils down to one thing: if Owner had gotten the warrant on the first day Client would be guilty of trespass. However, Owner waited four days to swear out the warrant and swore it out for the fourth day. In the meantime he has acquiesced to her presence and waived his right to pursue a criminal charge of trespass; he should have pursued a civil eviction. It's a weak argument and the judge and I engage in this conversation:
Judge: "Mr. Lammers, he told her she couldn't be there."This argument circle repeats for several minutes. It's crystal clear how he's going to rule. Finally, I answer the question one last time and finish saying something like this: " . . . and, sir, if that's not persuasive I fear we are not going to have a meeting of the minds." He grins at me again and finds my client guilty. He then gives Client a sentence which is basically time served.
Me: "Yes sir. On the first day. However, when he left her on the property and did not pursue a remedy he waived that claim."
Judge: "Mr. Lammers, as soon as she came on the first night he told her to leave. He never told her she could stay - she imposed herself."
Me: "On the first day that's correct. However, he let her stay there for four days. At some point allowing her to stay becomes approval for her to stay. When he did not act on the first day he approved her remaining at the residence in the room he himself called 'his son's and her room.'"
Judge (grinning): "Mr. Lammers, I just don't see how your argument makes sense. He told her she couldn't stay. Trespass is a continuing offense."
It was the end of the docket and he could see I was grasping at anything to argue my client's contention that she was not trespassing. I think the first round of argument he was listening; after that I think he was having a little fun with me - seeing how many times he could turn me on the spit before I would say, "Enough!" At the time I was a little exasperated but even I could see the humor of it. I went back into the lockup with my client to explain and when I came out the court personnel were smiling because they knew what had just happened.
Well, at least he didn't have the power to make me faint mid-argument.
Way to go the distance, Ken!
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