We come to the bench and I waive the reading of the charges and plead Client guilty. Judge Smith asks the prosecutor to summarize the evidence but the officer whispers in his ear and the prosecutor calls Witness - a lady who lives in the apartment complex.
Witness testifies that she heard some people being loud and looked out her window. She sees Client and another guy talking and walking away from the apartments. Later, Witness goes to Owner and tells him Client was on the property "because I hadn't seen him there for a long time." On cross I ask her if she saw him doing anything but walking away and she says "no."
Judge finds Client guilty. Prior to sentencing, Prosecutor calls Owner to testify. Owner testified that in 2003 Client was banned. In 2004 Client was convicted of trespassing on the property "and now we're in court again!" I don't cross (as a much better attorney than I am once told me, if all the water in the well is poison there ain't no reason to prime the pump).
Then I call Client. Client testifies that he dropped a fellow worker off at the apartment complex and walked over to say "hi" to Joe because he hadn't seen him in a while. Then he left.
Then comes argument:
Prosecutor: "Your Honor, I ask for jail time. He needs to know he can't go back to that property."I'm figuring the judge will either bite on the community service or give Client a weekend or two in jail. So much for my precognitive powers:
Me: "Judge, it's a very minor infraction. Witness told you that she hadn't seen him there for a long time. It's been two years since the last time . . .
Owner: "YOUR HONOR! Can I say something?"
Judge: "No. Go ahead Mr. Lammers."
Me: "It's been over two years. He wasn't doing any damage or causing any mischief. At worst, he might have been a little noisy. I realize you're probably going to require some punishment and I'd ask for community service."
Judge: "Mr. Client, Mr. Lammers has done an admirable job in representing you. (Aw crud) He's pointed out some of the better options available for you. However, considering the aggravating circumstances . . ."At this point I star thinking aggravating circumstances? What aggravating circumstances?
Judge: ". . . considering the aggravating circumstances I'm not going to take your attorney's suggestion. I'm sentencing you to 12 months with 6 months suspended."Holy Crud! Where'd that come from?
I ask the judge to let Client's bond carry over for an appeal to circuit court and the judge agrees to it. Client then gets to spend a hour in lockup waiting for the paperwork on his appeal to be done so that he can get back out and come back for his trial de novo in the circuit court a couple months down the line.1
All I can figure is that the judge saw the acrimony in Owner and gave him the pound of flesh, knowing full well that I would appeal anything that drastic. My only proof of that is the disproportionate sentence and the fact that the judge didn't even bat an eye when I asked that the bond carry over for the appeal.
Of course, there was one other possibility: the prosecutor might have had some embarrassing photos of the judge from some bar function or prosecutor get together (yep, yet another judge who used to be a prosecutor). The only problem with that theory is that the prosecutor was surprised by the sentence just as much as I was and the judge is just too much of a straight shooter to have ever done anything incriminating.
Oh well, the next go around hopefully those "aggravating circumstances" won't reappear and I'll be able to get my client the community service he should have gotten.
1 The inferior trial court in Virginia is constitutionally infirm so everyone (no matter how he pled in the inferior trial court) has a right of appeal to the superior trial court where there are trials of record, juries, etc.