05 June 2006

History of a Trial

03 July 2005: A young man by the name of John Smith is brought before the General District Court of Pitcairn County. He's an 18 year old ward at Lost Hope Juvenile Detention Facility, which is the place where Virginia sends people under the age of 18 whom it has given up on and keeps them until they are 21 or commit a felony inside. He's before the court because he is charged with two misdemeanor assault and batteries. This means he is accused of either assaulting another juvenile ward or he has committed a minor assault upon a guard. His court date is set for the 13th of October 2005 and since I'm sitting in the courtroom the judge assigns me to take the case. Before I can speak to him he is hustled out of the courtroom, put in the van, and shipped back to Lost Hope. Before I leave the courthouse, the judge calls me back to the bench and tells me that the date they've given me is incorrect, the client's court date is actually the 12th of October 2005.

So I have to arrange to go visit him at the juvenile detention facility (as well as about four other people I'm representing at Lost Hope). Lost Hope isn't as hard to get into some of the prisons I go to, but you still have to give notice a day ahead of time and it's at least a 45 minute drive from my office and further then that by at least half an hour from the courthouses I'm usually in. I have some trouble arranging for a visit during the day because, believe it or not, that's what I had to be in court. Thankfully Lost Hope has visits at night and that's when I end up doing. First I tell the young man his actual court date. Then, we talked for about 10 to 15 minutes, and I left not too terribly concerned over the charges.

24 August 2005: Young Mr. Smith is back before the General District Court of Pitcairn County. This time he's charged with knowingly and willfully injuring a guard -- a class five felony carrying up to ten years in prison. I'm not in court at the time but because I represent him on the other charges I am assigned to represent him on this charge. Therefore, the preliminary hearing for this case is set for the 12th of October 2005. I make plans to go out and see him at Lost Hope. However, before I can get out there Mr. Smith makes one more trip to the General District Court and I'm assigned to represent him in another case.

15 September 2005: Mr. Smith is brought yet again to the Pitcairn General District Court. He has received another charge of knowingly and willfully injuring a guard (class five felony). I am assigned to represent him on this charge as well. However, this preliminary is set for the 23rd of October 2005. I travel out to Lost Hope one more time and discuss the serious charges of which Mr. Smith has been the recipient. We spent some time talking and when I leave I have marching orders.

12 October 2005: Well, I'm in court and Mr. Smith has been brought from the juvenile detention facility. However, none of the prosecutor's witnesses are in court. The prosecutor moves for continuance and I object. However, the prosecutor gets a continuance until 23rd because we're all coming back to court then anyway.

23 October 2005: Only one of the prosecutor's witnesses shows up for court. The prosecutor can probably get a continuance for the felony witness who hasn't shown up because this is a first calling for that case. So the prosecutor agrees to drop the two misdemeanors and not bring them back as direct indictments as well as dropping one of the felonies to a misdemeanor assault and battery if Mr. Smith will plead guilty to it and take 12 months with six months suspended. Mr. Smith jumps at this deal. However, the witness who was supposed to be there for the felony preliminary hearing on the 12th of October has shown up this time so we have a preliminary hearing in that matter.

Officer Vincent is called by the prosecutor and testifies that Mr. Smith was pressing a call button in his pod and that when she went to stop him he grabbed her on the face, palming it like a basketball, and shoved her down. She then stated that he kicked her four or five times in the upper leg before being pulled away by a couple of other wards. The injuries she sustained were a strained back and a bruise. There was never any real doubt as to whether or not this would be certified to the grand jury and it was.

20 December 2005: This is both the day when the prosecutor takes his ham sandwiches to the grand jury and cases are docketed. Mr. Smith's case is set for the 18th of January 2006 and through dint of earnest effort the prosecutor manages to somehow miraculously get Mr. Smith indicted.

I try to go visit Mr. Smith out at Lost Hope, but I find out that he has been moved into the adult system. The people at the juvenile detention facility don't seem to know where he is, but they do know that he's been moved into the adult system. When I ask why, one of the guards opines that was probably because the last time he went to court the judge asked him why he was in Lost Hope; he told the judge that he was in Lost Hope because the last time he was in juvenile court he threw a clip board at the judge. The guard tells me that the very next day after he told this to the judge Mr. Smith was moved to the adult system.

Anyway, I have to track down where Mr.Smith is myself. Luckily, the Department of Corrections has a web site where it tells you where all the inmates are located. Unfortunately, Mr. Smith apparently hasn't been in the adult system long enough for me to find him in that way. So I wait a week and, sure enough, he pops up on the system. He's even in the same county; they just moved him down to the classification section of Pitcairn Correctional Facility.

So I jump through all the hoops and go to Pitcairn Correctional Facility, which (much like Lost Hope) is about 45 minutes from my office; however, it is more difficult to set up an appointment at Pitcairn Correctional because all visitation ends at 3 p.m. Because of a screw up, I go to the wrong part of the prison first (general population) and spend about 45 minutes there until they figure out I'm in the wrong place. I then drive around to the other side of the prison. Technically, when I get there I am too late to get in the visit Mr. Smith but they know about the screwup and bend the rules to get me in. The visit doesn't last all that long, it's pretty much just to confirm what I have spoken to Mr. Smith about before. I always try to meet with the clients before the trial date even if they have told me they are going to plead guilty because sometimes they change their minds. I also go over the questions I expect the judge to ask them. Before accepting a plea, judges in Virginia ask questions to determine whether guilty or not guilty pleas are voluntary and the defendant understands the consequences of his actions. I prefer to go over these with the client just before we walk into the courtroom because they forget or become antsy about their answers; however, in Pitcairn County I rarely have the opportunity to do this because clients tend to be delivered late to court, I usually have a number of cases, and the judge has my cases called one after another.

18 January 2006: I'm in court but somebody forgot to tell the circuit court clerk's office that Mr. Smith had been shipped from Last Hope Juvenile to Pitcairn Correctional Facility. Consequently, the case gets carried to the next docket call to set a new date when they can get him to court. As required by the speedy trial statue I note Mr. Smith's objection to the continuance. Yes, I know that it's silly for me to object to a continuance which is not in any way attributable to Mr. Smith, but the courts will use any technicality they can to get around the purpose and spirit of this statute. So I object.

13 February 2006: Docket call. Client's court date is set for 19 March 2006.

16 March 2006: I go back to Pitcairn Correctional Facility in touch base with Mr. Smith again about where we stand.

19 March 2006: This time they get Mr. Smith to the courthouse. Of course, they get him there so late that I did speak with him all of a minute before we go into the courtroom. We start the process. The clerk of the court stands up and reads the charge to Mr. Smith: "John Smith, you are hereby charged that you did, in the County of Pitcairn, against the peace and dignity of the Commonwealth of Virginia, assault and batter Mary Vincent, an employee of Lost Hope Juvenile Detention Center, with a knowing and willful intent to injure the same. How do you plead, guilty or not guilty?" "Guilty."

Then the judge starts to lead Mr. Smith through a series of questions. "Has anyone promised you anything to plead guilty today?" "No." "Has anyone threatened you or coerced you to force you to plead guilty today?" "No." "Do you know what the maximum sentence you're facing is?" At this point Mr. Smith starts to falter. He looks at me, so I prompt him and he answers "10 years."

"Mr. Smith, how much time as Mr. Lammers spent with you discussing your case?" "About 15 minutes." The judge fixes his gaze upon me, "Mr. Lammers, is that an accurate representation of how much time is spent talking to your client?" "Your Honor, I think it was more like an hour. There hasn't been much of a question of what was going to be done in this case." Then the judge asks him what his sentencing guidelines show. "I don't know." The judge looks suspiciously at me. "Has your attorney explained sentencing guidelines to you?" "No." At this point I'm doing what I normally do in this situation, I have chosen a point to stare at on the far wall and I'm chewing on my tongue. So the judge turns to me. "Mr. Lammers, have you discussed the sentencing guidelines with your client?" "Your Honor, I know that question is coming in this courtroom so I make a practice of discussing the guidelines with each of my clients." "Did you discuss those specifically with Mr. Smith?" "Your Honor, I remember discussing the guidelines with him, but I must admit I don't have a note my file saying that I gave him his specific guideline range." And to be honest, at that moment I can't remember whether I did or not. "Mr. Lammers, this court is going to be in recess for 10 minutes. During that time the probation officer is going to do the guidelines and you're going to take them to your client."

The judge leaves the bench and Mr. Smith is taken to the lockup area. I huddle with the probation officer and we figure out that Mr. Smith's guidelines are between six months and one year, with a midpoint of nine months. I go to the lockup area to tell Mr. Smith. He's not actually downstairs in the cages; they have him in a witness waiting room next to the court room along with DOC guards. Before I can even tell him his guideline range he blurts out, in front of God and everyone, that he's now going to plead not guilty for a reason having nothing to do with the guidelines. The guards are sitting there with looks somewhere between snickering, pity, and bemusement. Mr. Smith and I have a brief and rather intense discussion. However, he has made his decision and he is going to plead not guilty and take a jury trial.

We go back in the court room. "Your Honor, at this time my client would like to change his plea from guilty to not guilty." The judge looks at me like I am an absolute loser. He has the clerk re-arraign Mr. Smith. After Mr. Smith says that he's going to plead not guilty and take a jury the judge continues the case to the next docket call because there are no jurors available.

On the way back to my office I remember with crystal clarity the discussion I couldn't remember when I was speaking with the judge. I spend the rest of the day kicking myself because maybe if I'd remembered it clearly Mr. Smith wouldn't be taking a jury trial in a very conservative jurisdiction where, if he's found guilty, the jury is likely to sentence him to at least five times the amount of incarceration he would've gotten otherwise -- if they don't give him the maximum.

14 April 2006: Yet another docket call date. This time Mr. Smith's court date is set for the 28th of May, 2006.

23 - 25 April 2006: I have my secretary call the prison and set up an appointment for me to visit Mr. Smith. She spends a couple of days playing phone tag with the prison but eventually gets an appointment set up for the 27th.

27 April 2006: I'm actually in Shire County courthouse that day and I leave it to drive directly to Pitcairn Correctional Facility. The drive takes about 1 hour and 20 minutes. I drive around to the processing center, take everything out of my pockets except my wallet (without money), my keys, a couple pens, and Mr. Smith's file. I walk up to the gate and take my ID out of my wallet. The guard tells me I have take my wallet back to the car. By the time I get back from my car the guard has figured out that Mr. Smith was moved that very morning to Nehwon Correctional Facility, which is three hours in the other direction. Of course, nobody bothered to call until my office or me. Thankfully, it's only a 45 minute drive back to my office.

OK, so now, from my office it's going to be about a 2 hour drive to visit Mr. Smith and prepare him for the jury trial. Like most prisons, Nehwon Correctional Facility doesn't allow any visits after 3 p.m. I set up one visit but have to scratch it because a court schedules me for a trial and there's no way I can get to Nehwon Correctional before 3 p.m. So I set up another meeting which will be early enough in the morning so that I can hopefully get back in time for my afternoon cases.

15 May 2006: I get up, jump in my car, and drive down to Nehwon Correctional Facility. It's not a terrible drive - just a long one. I travel so far to the southwest that I'm pretty sure at one point I must have gone into North Carolina (wait, was that Asheville?). Anyway, I finally get there at around 10 a.m. We talk for two hours and I leave about 12:15. I call everybody by under the sun let them know I'm going to be late for court in the afternoon, eat that wonderful lunch of crackers, bottled water, and fig bars (which I buy at the local gas station) on the way back, and only arrive 40 minutes late for court.

The Weekend Before: Saturday I spend a good portion of the day finding and printing out the cases which I intend to use to support my arguments in the courtroom. By the time I'm done I've printed out six cases in triplicate (one for me; one for the judge; one for the prosecutor). I also finalize my opening argument and practice it a couple of times.

Sunday I spend a good portion of the day prepping up my voir dire questions and putting together the various jury instructions I might need. I also make a trip to the local Wal-Mart and spend an hour buying Mr. Smith a decent shirt, a good pair of pants, black socks, and a pair of shoes. I do this because the Supreme Court of Virginia decided sometime in the last year or so that it is per se ineffective assistance of counsel to allow your client to go to a jury trial in prison garb. Of course, the Supreme Court didn't say who was supposed to give the client clothing, but I suspect that the prison, prosecutor, and Judge are not going to have clothing for Mr. Smith. After I finish this I go home and work some more on jury instructions until my home printer runs out of paper somewhere around 11:30 p.m. I finish typing out the last couple of jury instructions but save them on my USB thumb drive so that I can go into work early the next morning and print them out.

28 May 2006: I get up early and go into the office so that I can print out the last couple of jury instructions. Then I leave early for the courthouse. I get there over half an hour early; of course, none of my clients are there yet. I leave the lockup area and about 10 minutes later my one client coming from off the street shows up. I talk to him for a while and then I go back to lock up area. My two clients in lockup have finally been delivered. I speak to both of them about their cases and explain to Mr. Smith that I have brought him clothes in the sizes he requested. I walk around down in lockup area and in the sheriff's area next to it trying to find someone to give the clothes to but there's no one there. Eventually I give up and go back up to the courtroom, where court has begun.

Immediately after the case before the judge ends, the judge calls me up and asks where I was at nine o'clock when court began. I tell them I was down speaking with my clients and he fusses at me for not being in the court room at nine o'clock when he started court. Then we try my first case. After that case the judge asks me if everything is prepared for the jury trial. When I tell him that I wasn't able to give Mr. Smith his clothes the judge orders the deputy in the court room to make sure Mr. Smith gets them. Then we try and my second case of the day. When that's finished the judge has a couple of civil cases he needs to call before Mr. Smith's jury trial begins.

I run down the lockup to see Mr. Smith. He's in the civilian clothes, but they have put him back in full shackles. His legs are shackled. His hands are cuffed. He has a chain around his waist to which the handcuffs are attached and a chain attaching his leg shackles to the chain around his waist. So I know what my first motion is going to be when we see the inside the courtroom because if it is per se ineffective assistance of counsel to allow Mr. Smith to be tried in prison garb because it's indicative of guilt I'm pretty sure that the chains are indicative of guilt as well. After we discuss things for a few minutes I head back up to the court room. The first civil case has just ended. Then starts a lengthy argument about quieting title to some realty in the county.

After about five minutes of this titillating subject I step back outside the court room where I see the chief prosecutor. He tells me that he doesn't think Mr. Smith's case is going to be tried today because their witness isn't here. He has sent the state trooper who investigated this case to call the witness. Then, as we are standing there the state trooper comes back with a pained look on his face. He has called the witness and she told him that her car was broken down and she wasn't coming to court unless he came to get her and also drove her kid to childcare.

About 20 minutes later the realty case ends. The judge takes a 10 minute break and I walk up to the assistant prosecutor who is actually trying the case. No one has told him that his witnesses is missing. So it falls to me and the trooper to tell him. After he digests this for a moment he offers to drop the charge to a misdemeanor with a sentence of six months, if he can convince the judge to waive his policy of no plea deals once a defendant has demanded his right to a jury. His other option is to nolle prosequi the case and reindict. I know how the second option works. They will recharge Mr. Smith with the same offense. Meanwhile, they will charge the guard with failing to appear in court. Her trial be scheduled after Mr. Smith's trial to make sure that she actually appears in court. After she has testified against Mr. Smith her charge will be dropped as long as the prosecutor is satisfied. I've never seen a person brought to court under those circumstances who didn't testify the way the prosecutor wanted her to.

So I go back to lock up again and discuss the offer with Mr. Smith. He's tickled pink and happily agrees to take the deal. So 10 minutes later we are in court in front of the judge.

The prosecutor explains to the judge that he realizes the jurors are already here but he can't go forward with his case today. His witness isn't here and he can't continue the case because of speedy trial concerns. He tells the judge that he realizes that it's contrary to his policy but the prosecution wants to do a plea bargain - misdemeanor assault and battery with six months in jail - because its other option is to drop the case.

The judge asks where the witness lives. The prosecutor tells him that the subpoena was served at Lost Hope Juvenile Correctional Facility and that he has an address for the witness which is somewhere in Richmond but he's not sure if it's accurate.

Judge: "You're sure that you don't want to send a cab to pick her up and bring her to court? Or maybe you can send the trooper to go get her?" For a second I thought he would ask the prosecutor to mobilize the National Guard. However, the prosecutor stands gamely in the crosshairs and tells the judge again that he doesn't think he has the right address and doubts the witness would be there anyway.

The judge still looks unconvinced. He asks Mr. Smith how much of an education he has. "GED." He asks Mr. Smith what he's been doing to improve himself. "I'm taking carpentry classes at the prison so I can get a job when I get out." He asks Mr. Smith where he plans to live when he finally gets out. "With my mother." He asks Mr. Smith how he got himself in deep enough trouble that he ended up at Lost Hope. "I fell in with the wrong crowd."

Judge: "What did you say?"

Mr. Smith: "I fell in with the wrong crowd."

Judge: "Did you say you start using crack?"

Me: "No! Your Honor, he said he fell in with the wrong crowd."

Mr. Smith: "Yes Sir. The wrong crowd Sir."

Judge: "Oh, okay."

At this point the judge decides he's going to allow the deal. He lectures Mr. Smith about taking advantage of the break he is getting today. Then he allows the prosecutor to amend the felony to a misdemeanor and sentences Mr. Smith to six months in jail. I go down to lock up with Mr. Smith, get the civilian clothes back, and make sure he understood everything that happened in the court room.

And thus ends another thrilling courtroom saga.


Joe G said...

A stunning post, Ken. I can't say enough good things about it. It even surpasses some of your previous lengthy and informative posts on the travails on the way to trial.

Thanks for writing this.

And my favorite part? "The wrong crowd!"

Windypundit said...

Sounds like you criminal defense lawyers spend more time driving around looking for clients than in court. It also sounds like UPS tracks packages better than the Virginia DOC tracks prisoners.

ACS said...

My favorite part was when the judge assumes your client got into Lost Hope because of smoking crack. This judge probably knows nothing about the problems of defense attorneys in VA.

That Guy said...

Why is it that the PD blogs are so damn good?