Tuesday, April 13, 2010

Things I Get Yelled at For, No. 1

I had debated whether to post about Things I Get Yelled at For, because even though Getting Yelled At is a constant, occasionally funny, and typical occurrence in the PD profession, when one talks about it, one faces the possibility of sounding whiny or defensive or in need of getting yelled at. I'm trying to save my complaining for my real-life colleagues, who have to put up with me, rather than directing it at you, my invited blog-reading guests.

I changed my mind and decided to write about Getting Yelled At because I received an email that reminded me how dismaying this treatment can be to newer PDs. My hope is that by showing you guys that I get yelled at (believe me, all the time) you can take comfort in the fact that you're not the only one.

A PD reader wrote,
I was one of the few in my law school peer group to want to work as a public defender but I don't think I was prepared to face the onslaught of disdain one receives from judges, prosecutors and sometimes the client. I love this job, I consider it a privilege, but I don't think anyone could do it without a strong network of dedicated colleagues.

So, Dear PD Reader, this is for you:

FROM THE ARCHIVES, unknown year, subtitled: "And You ALWAYS Grant My Dismissal Motions"

(Background: I had a client facing drug charges, who was taken into federal custody and prosecuted in federal court. One day, the federal hold was released, and he was back in state custody. I expected the state prosecutor to dismiss my case, because I learned that the client had received a lengthy prison sentence in federal court. I believed that the federal prosecution involved the same set of facts as my case, but wasn't completely sure--sometimes cases will overlap, but not involve the exact same facts.

I was surprised when the prosecutor offered the fabulous plea bargain that my client plead guilty as charged to the state charges. I asked the prosecutor if the federal case and my case were the same, and he assured me that they were completely different.

The trial date approached and I obtained a copy of the court file from federal court, and discovered that the federal facts for which my client was prosecuted were the exact same facts that my case involved. Because the crime he plead guilty to as part of a plea bargain in federal court had different elements than mine (maintaining a drug house vs. possession with intent to deliver), though, a dismissal under WA's statutory double jeopardy bar was arguable, but not guaranteed. In my research, I learned that a motion to dismiss on these grounds could be brought at any time, even for the first time on appeal, and noted that the trial was set the week after Christmas and involved a dozen state and federal officers, and called the case ready for trial.

What follows is a redacted, rough transcript of the state's motion to continue, heard on the day of trial. The judge hearing the motion was assigned only to hear the state's continuance motion, and had done nothing on the case prior to this hearing, and was not assigned to hear the trial. (please note that I sound pretty stupid here--and maybe I always do--but I really wasn't expecting to get yelled at on this day and was caught off guard.)

MS. PROSECUTOR: This is State’s motion for continuance of the trial date, I filed a certificate in support of my continuance request. ... The case rests exclusively on the testimony of the law enforcement officers who were present and conducted the search and interviewed the defendant. Both Deputy AAA and Detective BBB are material witnesses for the State and out of the office until January ... In terms of any prejudice in terms of speedy trial, the Defendant is here on a Marshall’s hold, um, he was sentenced to seventy-eight months in federal prison so arguably he’s on a ninety day clock. ... He’ll remain in custody but he’s serving the federal sentence in any event.

This is the first trial date, as the court knows, it’s unusual for a case to really go on the first trial date. The drugs are in the lab, you know, having been tested. It’s not as though I don’t have my physical evidence; I don’t have my testimonial evidence and I found out about that, well, I guess on the 23rd when I submitted my certificate.

COURT: Ms. Defender.

MS. DEFENDER: My client has already plead guilty and been sentenced to about seven and a half years for the exact same conduct that he has been charged for by the State. Those issues aside, when the state made an offer of pleading guilty with concurrent time, that seemed ludicrous to us since he’s already plead guilty and gotten a substantial amount of time for the same conduct and on the same date ...

COURT: Is there gonna be a motion here?

MS. DEFENDER: There will be, but it can be brought at any time even for the first time on appeal, when it’s regarding jurisdiction and double jeopardy, although it’s more statutory double jeopardy than constitutional.

COURT: Wouldn’t it make a little sense to have it at this point instead of putting the tax payers to the expense of another trial?

ME: Your Honor, the Defendant has the right to a trial and the Prosecutor is the one who is electing to pursue this trial, when my client has already plead guilty and been sentenced in federal court. The Prosecutor is the one who is choosing to prosecute him again even though he’s already been sentenced. My client has the right to a trial.

COURT: Why would you want to put him through a trial if you could simply note a motion?

ME: Excuse me, Your Honor? My client has a right to a trial ...

COURT: Ms. Defender, [a gavel may or may not have been banged at this point] Ms. Defender, I don’t appreciate your attitude or your demeanor today. I am asking you respectful questions and I’m, that’s not what I’m getting back from you.

ME: I apologize, Your Honor, I do apologize for my tone. That’s not what I meant. I was a little surprised when the court asked me whether I felt bad about putting my client through a trial which . . . Frankly, I was a little shocked by that question.

COURT: Is there, you’re saying that there’s a valid issue of jurisdiction. Why not bring a motion so that he doesn’t have to go through a trial and perhaps this could be dismissed before he has to go through that?

The judge eventually denied the state's continuance request, and later that day, the case was dismissed.


Anita Moore said...

Sometimes, being a PD feels like eyedropping holy water into hell. It's rough to have everyone and everything against you. But having everyone and everything on your side all the time is dangerous. That is the road to laziness, stupidity, and towering hubris. On the whole, I'd prefer to be a PD and I am thankful that that is where I am.

Besides...being the turd in the punchbowl is a luxury that prosecutors will never know.

Anonymous said...

Today, I plan on making a comment about the prosecutor's rationalized dishonesty in the plea bargaining process at a change of plea hearing. Sometimes, it is important to put yourself in a position to be yelled at for letting the light in on the sleeping system.

I would be lying if I didn't say it was personal. Mwahahahaha!

Anonymous said...

I'm a fan. And a PD who gets yelled at unjustly all the time. And loyal to other PDs. And I think you were 90+% right here. And I always think I'm 100% right even though nobody totally agrees with me on that.... But, all those caveats and qualifications aside, I have to say that, just from what you quoted, it kind of, sort of, a little bit, sounded like the judge was trying to give you an out or at least encourage you to file the motion so the case could be dumped, and maybe the prosecutor was being such a jerk that the judge's signal didn't come through. And then when the judge perceived you as coming back at him/her after he/she was trying to help you, the judge got irritated because your position made no sense to him/her. But I wasn't there.... so what do I know?

Miss Conduct PDX said...

I figure that if I'm getting yelled at, I'm doing my job.

At least, no one's yelling at my client.

We love the blog down here in Stumptown.

Alex S. said...

I wonder why you didn't ask the "learned" Judge why he wasn't yelling at the prosecutor for going forward against your client already serving 78 months? Why didn't he yell at the D.A. for wasting taxpayer's money. I am glad your client's case was dismissed but I wonder the Judge is going to apologize to you?

Anonymous said...

Thank you for this!