16 February 2007

Indefinite n00b

Cross-posted from KenLammers.com

It's interesting to watch how different courts work. I had experience with a number of courts around the Richmond area and seen numerous variations on a theme. Then I came out to Wise and the theme was different. It wasn't so different that it was incomprehensible. It was more like when you switch between two themes on an electronic device - you know everything is there, it just takes a while to figure out exactly how to do something that you used to be able to do by rote. Still, eventually it comes naturally again.

There were a number of small differences. Some things I had almost always seen done verbally, ie. continuances and nolle prosequi motions, are done with a typed order - as are amendments to indictments, as opposed to just walking up to the bench and scratching through and writing the change in, which was how I had seen done in the vast majority of cases. At first, I found the former annoying (mostly from the fact that I kept forgetting to type them up before I came to court), but the latter makes sense to me (after all indictments should be legible). Of course, I was used to popping up and down every time a judge came into the courtroom in the Richmond area; other than at the beginning of the day no one stands when the judge enters or exits here. In fact, if there is a lull in the courtroom a judge might just stand up and go get something he needs from his office. I think they thought I was crazy when I first got here because I was popping up and down all the time. Another difference is the way indictments are handled. I'd never seen multiple counts on an indictement before I got here. Around Richmond every single charge got its own indictment. Here in Wise there is one indictment with a count for every charge. In effect, they accomplish the exact same thing and I think the Wise way is more efficient; the only possible problem I can see with it is if the grand jury decides it wants to not true bill count 4 of a 22 count indictment it might not true bill the whole thing, but that seems a very slight possbility to me.

One of the more confusing things that came up was differences in the the way plea agreements are written in the two areas. Specifically, the two areas use different language when they discuss probation after incarceration. I was used to some variation of this:
The defendant shall be sentenced to 5 years with 5 years suspended for 3 years. He will be subject to an indefinite period of probation.
What that meant was that the defendant would be under probation for a period of 3 years with 5 years imprisonment possible if the judge decided he had violated his probation. "Indefinite period of probation" meant he would be supervised until his probation officer decided he didn't need to be any more. Usually that was about a year of probation. After the probation officer released him the time still "hung" above his head for the remainder of the 3 years and if the court decided to it could still bring him back and make him serve the time.

Fat, dumb, and happy, I started writing plea agreements using this format. Unfortunately, before I realized the language used here is very different I had sent out 20 or 30 plea agreements. In Wise the language used to accomplish exactly the same thing is:
The defendant shall be sentenced to 5 years with 5 years suspended. Probation shall be for 3 years. Supervised probation shall be for 1 year. Unsupervised probation shall be for 2 years.
Nobody understood what I was writing in my plea agreements. In particular the "indefinite period of probation" confused people a lot. So, my solution was to start writing "3 years of probation with an indefinite period of active probation which shall end at the probation officer's discretion after 1 year." This accurately reflects what actually happens because, whether his time has run or not, there are usually conditions which a probationer is required to fulfill before he can get off supervised probation. Still, the judges had trouble getting their eyes past "indefinite period of probation." The judge who sits here normally had it figured out after a couple plea agreements but when we had substitute judges it would confuse them every time. One judge, after I had spent about ten minutes explaining what it meant, just looked at me and said, "Where did you get that language?" You could pretty much hear the "n00b" attached to the end of the question.

At this point my last vestige of stubborness gave way and I got ahold of one of the other prosecutor's plea forms and shamelessly plagiarized the language which everyone was expecting to see. So now everybody's happy with the language. I'm not sure everyone is happy with my plea offers (at least I hope some of the defendants aren't), but everybody's happy with the language.

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