11 April 2006

The Heisenberg Uncertainty Principal in Court

Many of us can harken back to the days of yore when we were taking physics or chemistry courses and learned the Heisenberg Uncertainty Principal. While it's more complex than this, a basic description of the principal is that the act of observing a subatomic particle changes that particle. Well, this principal doesn't only apply to subatomic particles - it also applies to courtrooms.

The Courtroom Uncertainty Principal - the behavior of prosecutors and judges will change if reporters are present.

Yep, we've probably all been there before. It's a typical grand larceny. Client has been in jail 6 months waiting for the end of his trial and his recommended sentence is 6 months. Normally, you'd go up and point out the good things in your client's life (new child, fiance, job waiting at his Uncle's candy factory), the prosecutor would submit the case without argument, and the judge would sentence your client to the recommended sentence. You make your pitch and, without warning, the prosecutor pops up and goes into an impassioned speech about the horrors of your client's act of stealing three sweaters and how such an act is the ultimate example of evil in society and demands no less than digging a hole under the jail and burying Client in it for the next 5 years. The judge, cued in, gives a long and somber speech about the evils of your client's act of villainy and, usually, gives the same sentence he would have anyway. If you're a newly minted attorney you walk out of the courtroom wondering "What the heck just happened?" If you've been doing this for a while you don't even have to turn around - you know there's a reporter in the room. After you've been at it for a while you can even distinguish what kind of reporter without looking. If the prosecutor just wants to put your client in jail for the next ten years, it's the local paper. If the prosecutor wants to bury your client under the jail for those ten years, it's someone from the regional paper. If the prosecutor wants to impose the punishments of Tantalus or Sisyphus, it's a TV reporter. If the prosecutor starts by saying "Lasciate ogne speranza, voi ch'intrate" and wants to condemn your client's soul to eternal damnation in the 6th Circle of Hell, it's someone from the NYTimes or a national TV reporter (understand that this is merely a theoretical understanding on my part - I've never actually seen either of these in court).

To be fair, the prosecutor isn't the only person in court affected by observation. I'm sure there are defense attorneys who are affected as well - lawyers who wax rhapsodically about their client's epiphany and near certain canonization. And I know judges are affected. How do I know? Well, I saw it yesterday.

I walk into yesterday's pretrial hearing for those who are being held in custody (they are informed of their charges, asked what they intend to do for a lawyer, and have bond set). Mostly, there's the typical crowd: about 8 lawyers sitting around to see if a case will be assigned them by the judge, the clerk, a couple deputies, the families of a couple of the people who are getting pretried, the judge, and a really, really good looking redhead sitting on the front row. Upon a second or third look I realize she is dressed far too nicely. I look around. There's a guy over there in a light blue shirt, tie, and with perfect hair. And there's another one. Aha! We have reporters.

The hearings commence. The judge is being very clear and polite with each and every accused, but he's not changing many of the bonds the magistrate has set - unusual because this is a judge who is pretty assertive. Still, it could just be that he agrees with the bonds set by the magistrate. So we go thru the entire docket. The judge assigns attorneys to those who need court appointed attorneys; I get assigned to a trespass case in which the judge refuses to set any bond amount.

About 80% of the way thru the docket the judge is informed that Juan Guzman hasn't been brought to court. In fact, the local jail shipped him out to the regional jail this morning. Normally this would just mean that the pretrial would be put off for a day. However, on this day the judge orders the deputy to call the regional jail and see if a video pretrial can be set up; the deputy starts making the calls. In case you haven't guessed, Guzman is the reason the reporters are in court.

The English language portion of the docket ends. I get up to leave (I don't speak Spanish) and, since there's nothing currently going on in court, tell the judge "Have a good day, your Honor." It's the polite thing to do and most attorneys do it on their way out if it's the end of the docket and the judge isn't busy. This judge is a decent sort and normally you get a nod and maybe a "Good day" back. Yesterday: "You have a good day as well, Mr. Lammers. It's always good to see you in our courtrooms." Ya' coulda floored me. Free advertisement which made it sound like it was a privilege to have me in the courtroom. Now if I could just get the reporters to report that statement or the judge to say it in a courtroom full of people who might hire me . . .

I left the courtroom and never did find out if they were able to get the video pretrial set up. The regional jail's personnel don't answer to anyone in the county (they're not part of any sheriff's department) so they can be, ummmmm, intransigent when things aren't done exactly according to schedule. Still, with pressure from both a judge and reporters it may have come off.

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