28 February 2006

Watching A Prosecutor Try to do Right

I'm sitting and waiting for my case to be called. I know my last two cases for the day are going to be called last because my clients are residents at the local juvenile detention facility and they are always the last cases called. A case is called and a young woman comes up to the bench by herself. Now, admittedly the only reason that I paid attention at first was because she wasn't half bad looking and her sweater fit just right, but the case itself quickly became interesting.

The woman walked up and announced that she was going to defend herself. The judge reads the charge of misdemeanor obstruction of justice and asks her how she is going to plead. "Not Guilty." The prosecutor gets a pained look on his face and asks the judge to hold everything for a minute. Then he walks the young woman away from the bench and says, "The judge's gonna find you guilty of this. Plead guilty and we'll take it under advisement for 6 months. If you don't get in any further trouble it'll go away and there won't be anything on your record." The woman looks upset, but I think I see her nod. They both walk up to the bench and the judge again asks her how she pleads. She pauses for half a second, then takes a breath, and starts crying. And not gentle sobs - nope, she's out-and-out WAAAIILLing. The judge is sitting there in shock, looking at this girl balling her eyes out four feet away and, after a couple seconds the prosecutor suggests that they pass this case over. The judge agrees and the girl bolts from the courtroom - followed by mom and dad, who were sitting on the front row of the gallery.

A little later the court is in recess and Dad is back in the courtroom. The prosecutor walks over to talk to him and Dad says something about how the girl just can't bring herself to plead guilty. I can't hear the whole conversation (and I'm not trying to eavesdrop) but I think the prosecutor makes another effort to get the family to talk her into taking the deal.

Court goes back into session and the case is called again. The girl walks up and I'm sure they've got it all squared away. The judge asks her how she's going to plead. "Not guilty." OMG. The prosecutor looks more frustrated than anything else and puts on his case. A state trooper was dealing with another young woman and was trying to get her to exit a vehicle. The other woman refused to exit her vehicle so the trooper took her by the arm and tried to remove her. At this point the other woman launched herself at the trooper and used her fingernails to gouge into the trooper's head (I remember seeing the trooper the week after this happened and he had 3" furrows in the sides of his skull). The trooper then "takes control" of the situation and handcuffs the woman. The girl on trial apparently ran up and started screaming at the trooper while he was engaged in combat with this woman and then she tried to pull her friend away from the trooper while he was trying to handcuff her. Her primary defense? "I've never seen anyone handled as roughly as he treated Joan." That was it - an open and shut case. The judge finds her guilty.

The girl starts to cry again (although more like a quiet sobbing). The judge is ready for it this time and tells her that crying isn't going to change anything. Then the judge sentences her to six months and suspends all of it.

The lesson for today boys and girls (besides hiring a defense attorney)? If a prosecutor finds that tiny corner of his heart where he hides the tendency toward mercy take the deal.


Kurt Hunt said...

Since my posts about criminal law are so few and far between, I thought I would point this one out to you:

A Shake-Up in Criminal Recidivism Laws

Recent movements in California and Ohio indicate that recidivism laws may be in for an overhaul. Any thoughts on the changes, or repeat offenders in general?

Anonymous said...

I don’t see anything good about any of this. This prosecutor was just trying to sweet-talk people into pleading guilty. There may be defenses to these crimes, and maybe the proof just isn’t there. Even in Virginia, which is the state that has declared that its constitution doesn’t mean anything.

The “taking under advisement” deal would need to be adequately papered, and since I am a lawyer (though not on in Virginia) I would have to know more about what this means. From watching appellate opinions, it seems that such actions might come back to hurt someone in later proceedings.

Moreover, most employers I know would never hire any of these people, and this prosecutor basically ruined their lives. Trying to convince someone’s family to convince them to plead guilty, is, in my opinion, a little dirty.

This prosecutor just wanted to make his life easier by beating up on a few of the kind of people that are stupid enough (or black enough) to get arrested.

Ken Lammers said...

Advisement would basically mean finding facts sufficient and then dropping the charge after a certain amount of time if the defendant doesn't get in any other trouble. The charge goes away: no conviction.

There was no doubt on those facts that she would get convicted in that court.

And, the girl was white.

Windypundit said...

Attacking a trooper and putting 3-inch scars in his head is "misdemeanor obstruction"? That sounds surprisingly mild.

Anonymous said...

From how I read it, it wasn't the woman on trial that gouged the trooper, it was the "other" woman. The woman on trial just yelled and grabbed at him.

Anonymous said...

She is only lucky if she 1) actually did it; and 2) is credible. In many jurisdictions these “obstruction” misdemeanors are often embellished, and are a headache for prosecutors to try, because the cops testimony often doesn’t bear out. (I have seen cops crack after 4-5 hours of cross examination, when they can’t get the details right.)

As the visiting cop above points out, she could have gotten more time. But, my guess is, that the prosecutor smelled a few holes in the cop’s story.

Anyway, at my old firm, if you agreed to such a plea on behalf of a client, without vetting it with at least two other lawyers, and writing a memo on the collateral consequences you would have been fired. This girl’s life is, for all intents and purposes, ruined, because 1) some cop decided he didn’t like her; and 2) some prosecutor felt that the best route was compromise.

Oh, TWM, “Yelling” at officers generally isn’t a crime. My guess is that the witness didn’t have any physical evidence, so he wrote up a rather weak police report.

Anonymous said...

While I wouldn't assume that the officer in this situation didn't improperly escalate the situation or embellish it after the fact, I wouldn't assume that he did either without knowing more facts and whether or not he has a history of doing this sort of thing. While police officers might not like hearing it, it DOES happen sometimes.
I also would not say that a conviction "ruins" someone's life. Heck there are states where a convicted felon can get admitted to the bar (for example a college student gets convicted of cocaine possession, gets clean, graduates, goes to law school, etc). This wouldn't happen in Virginia these days, but that is an argument for another time. From the facts presented, it appears that this lady was convicted of a misdemeanor and received a suspended sentence. It sounds more like a bump in the road of life than ruination.

Anonymous said...

TWM, Before I conclude that you made it up, can you provide authority about how “yelling” can be a crime, “if it interferes with a police officer’s duties.”? This seems rather vague, as it would mean that a police officer could decide that he is doing his duty in a way that would infringe upon a person’s right to get some message across.

Of course I have no proof. In fact, I don’t have any proof that the prosecutor did what Ken says he did. I wasn’t there. Ken could have made the whole thing up. I don’t even know what town it was in. I don’t know the name of the girl, the cop, or the prosecutor. However, as a practical matter, people do get arrested for misdemeanors are not the kind of people that cops like. It would seem that if the prosecutor was willing to deal so low on this case the proof was so weak because he saw that this person didn’t do anything that would require a higher sentence.

Indeed, the point of having social skills is to avoid the negative attention from police or anyone.

To me, this girl’s life is ruined. I would never hire her because of her arrest. If she did go to law school (unlikely since she is the kind of person that couldn’t afford a lawyer, and is stupid enough to piss off a cop), it will be more difficult to get past the character and fitness exam. She probably won’t be able to become a prosecutor. If I was her lawyer, my position should have been that not only should have all charges been dropped (or whatever term they call it in VA) but her record should have been expunged.

Her only mistake, it would seem, is taking the legal advice of someone (a prosecutor) that doesn’t have her best interests in mind. A real person, with a real lawyer, would have not made that mistake.

Anonymous said...

The fact is that yelling in public is often considered "boisterous" behavior and is enough to get you in trouble for disorderly conduct or something similar in most places. I'm quite the civil libertarian, but let us be honest with ourselves - you are playing with fire if you get in a cop's face- if you don't know better, you will learn eventually.

As far as this person's life being "ruined," it is pretty ridiculous to assert that a single misdemeanor conviction ruins someone's life. Granted, this lady is probably a hopelessly ignorant redneck, but the other "anonymous" doesn't know that, nor does he know if she has other convictions. If anything is going to ruin her life, it is people like him who "would never hire her because of her arrest."
The law school example was simply an illustration that having a criminal record doesn't ruin you life (it is rare, but not unheard of for convicted felons to attain bar membership in some states and a well-known public defender in CA with several heroin possesion convictions from before he received his JD just passed away). This sort of fatalistic attitude in an advocate could seriously discourage clients who must move on with their lives after a conviction.

Anonymous said...

Well, just because it will “get you into trouble” with a cop doesn’t resolve whether it is a crime or not. You know, and I know, that cops deliberately or not-so-deliberately often don’t know what constitutes a crime. Unfortunately, for most people the only way to resolve what is or is not a crime is the criminal justice system, and you people don’t even get definitive resolution if charges are dropped. Seeking a declaratory judgment or an injunction is beyond the reach of most.

In general, I agree with you about this person being a probable redneck. Heck, if Ken didn’t prove repeatedly that he was a lawyer, I would presume him to be a redneck simply because of his address. While, of course I wish people the best for their lives, post-conviction, I am frightfully aware of the collateral consequences that people face for even minor convictions.

Anonymous said...

Dear Mr. Cop,

The Connecticut statute you provided did not specify yelling. You also didn’t cite to any caselaw which allowed someone to be convicted under that statute for yellowing at an officer of the law. I generally don’t use Google, because too many publications from non-lawyers are found there, and it therefore useless. But, to humor you, I did do a Keycite of that statute on Westlaw, and found no reported cases where a yeller was convicted under that statute, especially in view of a rather strong protection for must forms of speech, including telling a police officer that he is an idiot and a waste of taxpayer money. (I have suggested that the constitution be amended to provide no protection to people that criticize the police or government bureaucrats, teachers, politicians, and the Department of Motor Vehicles, but people were more interested in an anti-gay marriage amendment, so criticism of the police, even in loud form, remains protected.)

Does this mean that what you “think” is the law is incorrect? Perhaps.

While it may be true that police and attorneys differ as to what constitutes a crime, the positions that lawyers take in court on behalf of their clients, are not an example of what the “know” to be a crime or not. Instead, they are an offered interpretation of the law, which the court may or may not accept. As you know, the police are not the final arbiter of what constitutes a “crime.” The courts are (insomuch as they must interpret the language of the statute, and reconcile conflicting statutes and constitutions). So, while you might say that a given lawyer doesn’t “know” what the law is, you really mean to say that you either disagree with him, or a court later disagreed with his proposed interpretation.

This issue is a little nuanced, sine in many situations, the “law” isn’t at all clear, and even when the courts rule on it, there is a question of whether certain state actions were void from the beginning, or whether simply enforcement has been suspended. As we now know, a state can’t prohibit black people and white people from marrying each other (unless marriage as a whole, is abolished in that state.) However, for the longest time it was assumed that the constitution didn’t allow Virginians to marry people of certain races. (Though minorities could intermarry under Virginia’s statute.) Then one day someone challenged this. You, as a cop, would probably loudly declare that those lawyers and litigants “didn’t know the law.” But, ultimately it was determined that the state was wrong, and, in fact, it “didn’t know the law.”

The sad part about this is that while courts usually have the luxury of time, police usually have to make quick decisions.

Anonymous said...

I think that this cop might not be telling the truth. He cites C.G.S.A. § 53a-167a, but he should have realized that the Connecticut Supreme Court, in State v. Brocuglio, 264 Conn. 778, 826 A.2d 145 (2003), specially held that there is a common-law privilege to resist illegal search, and therefore a conviction under this statute (in addition to another statute) was invalid. The cop should have mentioned it. Now I don’t know whether I will ever be able to trust a cop again. In State v. William, 205 Conn. 456, 534 A.2d 230 (1987) the court upheld a conviction under this statute, but noted that the conduct must only be be “intended to obstruct the police in the performance of their duties.” The court explained that the statute isn’t vague, because… “To avoid the risk of constitutional infirmity, we construe § 53a-167a to proscribe only physical conduct and fighting words that " ' "by their very utterance inflict injury or tend to incite an immediate breach of the peace." ' "” Therefore, contrary to the words of this officer that claims he knows the law better than lawyer, there needs to be an intend to incite an immediate breach of the peace.

I can only wonder why this cop, that cited a Connecticut statute, didn’t mention this caselaw? Did he do it negligently or deliberately? Why? I feel betrayed. I am sure it was just a mistake. I hope.

Ken Lammers said...

Please stop the "cop" stuff. Disagreements, yes. Rudeness in the discussion, please avoid.

Ken Lammers said...

For everyone's knowledge:

If the young woman had taken the prosecutor's offer he would not have gotten a conviction if she didn't get into trouble for 6 months and neither would she. It would have gone away. Anyway, it's my understanding that the number of convictions credited to a prosecutor's office in Virginia are only the felonies.

The obstruction didn't need to reach the issue of her speech. She tried to pull her friend away from an officer who was trying to handcuff the friend.

Anonymous said...

Seriously, officer, stop using Google and become a lawyer the rest of us.
If you were a lawyer, would have known that the Supreme Court expressly said that police cannot be provoked (because they are trained and such) and therefore the “fighting words” doctrine isn’t applicable. (I think the original posters left this out on purpose to see if you would take the bait.) Anyway, in City of Houston, Tex. v. Hill, 482 U.S. 451 (1987), the court held that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. “Speech is often provocative and challenging•••• [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, …(1949). In …Lewis v. City of New Orleans, 415 U.S. 130,… (1974), for example, the appellant was found to have yelled obscenities and threats at an officer who had asked appellant's husband to produce his driver's license. Appellant was convicted under a municipal ordinance that made it a crime “ ‘for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.’” Here is your full text of the case: http://www.justia.us/us/482/451/case.html

Probably most of the “fighting words” doctrine in Chaplinksy has fallen into disfavor, except amongst those who insist that everyone else is uttering “fighting words” by saying things they don’t like.

Anyway, I sure hope that that trashy girl conviction would have stood up under Hill. If not, the prosecutor tricked her. But maybe she deserved it and she seems uneducated, which in many families is a crime.

Ken Lammers said...

I've only had one case wherein an officer arrested a client purely for his speach. They had a confrontation and he yelled a string of obscenities at the officer from across the street. The officer arrested him.

The case was thrown out at trial because the words alone were not enough. The test was whether the officer believed, in good faith, that the words would provoke violence. On cross the officer admitted that he was too much of a professional to let Client provoke him into throwing a punch and nobody else was around. The judge didn't like it but he had to dismiss.

Windypundit said...

Wow, I wish I could capture people who say mean things to me. That would be cool!

Anonymous said...

TWM, Neat. You were in the Air Force, too. But, I don’t understand why I should regard your comments any differently because of what you did in the past. Giving me your resume doesn’t make you smarter, or your arguments any more correct. In the future, I would urge you never to use Google. It is a dirty search engine.

Anyway, in my family (and in the families out there that “matter”) being an attorney is, indeed, the be-all-and-end-all of existence. I know it sounds a little crude, but if someone in my family got past 30 without a law degree, they would be disowned. This is why this country is, and always will be run by lawyers, no matter what political party the lay people voted for.

While some legislatures like to play around with writing statutes that criminalize all kinds of things, the “law” (that is, the commiestitution) doesn’t let them do this.

Ken (and others) , The cross you saw was basically an attempt to fit the case into the Supreme Court’s dicta, which essentially said, “police shouldn’t be the type of people that would be provoked into anything.”

But, I agree with Windypundity. It would be cool to put people in jail that make me angry. I would conduct mass arrest of people at Jimmy Buffet concerts, because those people are bad.

Ken Lammers said...

Nope. We'll probably never see doctors here. If you've ever seen the look that doctors give someone when they find out he's a lawyer you realize they don't want to be within 20 miles of us. ;-)

Anonymous said...

Indeed, the bald eagle sheds cries every time someone is arrested for “contempt of cop.” By now officers of the law should know that merely when someone is rude to them, or tells them what they think, they have not committed a crime. Indeed, many think that such arrests, in their aggregate do more damage to democracy than 9/11.

Anonymous said...

I don't know whether this was a contempt-of-cop charge or a legit interference/obstruction charge (the allegations do appear to involve real, but minor, interference). Regardless, the girl probably should have taken the deal (with the help of a lawyer) to keep a clean record.

I wonder, however, whether the prosecutor even considered just dropping the charges? The offense was relatively small, and the girl had obviously already been subjected to a difficult and onerous experience. Maybe that in itself was enough punishment? Given that the sentence was (predictably for a minor first offense) suspended, the only difference between dropping the charges and not was the (vast) set of collateral consequences accompanying conviction.

She may have been dumb to act as she did (both with the cop and with the prosecutor), but does that justify branding her as a convicted criminal? Was she punished for her crime, or for her refusal to submit to the system? Was the prosecutor afraid that dropping the charges in any obstruction case would result in blowback from the police? Although the girl appears to have had some trouble acting in her own best legal interest, I have lingering questions about whether justice was really served here.

JB5 said...

I think your anons here were being willfully ignorant and trolling. Especially when their disagreement is based on taking TMWs remarks and deleting the part that makes it matter, they wanted to get into a fight about yelling, but TWM said "Yelling and grabbing at the officer", not just yelling.

Of course what had happened:
"she tried to pull her friend away from the trooper while he was trying to handcuff her."

From the Virginia code § 18.2-460 - Obstructing justice :

A. If any person without just cause knowingly obstructs ... any law-enforcement officer in the performance of his duties as such ... he shall be guilty of a Class 1 misdemeanor.

Having "never seen anyone handled as roughly" is not just cause, it is evidence of the person's lack of experience.

But hey, what do I know, I didn't get my law degree before 30. I just know that under the plain reading of the law she was guilty as hell with the facts presented. She should have taken the deal and walked away ecstatic.