Scoplaw

New England Humor

Yes, it does exist, in its gently straight faced way.

So I was Wrong

Which happens often.  The trick is to not fear being wrong, for without risk, there's no growth, no tension that causes you to examine.  So, talking, reading, thinking, writing, doing and being newly is the mandate.  Not obsessively, of course, but in a way that challenges you, that keeps you moving.

Last night the Unpronounceable Name stopped by for dinner and talk (and, in general, companionship), which featured, in parts, a sort of very challenging meta conversation on leading the good life, as well as the visceralness of belief in a Catholic context.  As Aristotle would have noted (had he been invited), talk and inquiry and conversation was itself a kind of productive happiness (a happiness in doing, not, as our culture often quite wrongly has it, in a kind of post-achievement glow and external rewards.)  It's been awhile since I used the words "virtue" and "grace" seriously in a conversation, and longer since I thought about what those words mean - actually it's been so long it was as if part of my brain were a dusty machine that squealed and groaned its way into lumbering motion.  I don't think anything broke though. 

I've had good conversations in Miami before - certainly those whom I've count as friends here have all had some kind of "good talk" with me at some point or another.  (Although I must say good conversation is rarer here than in DC, or just about any of the other places that I lived.)  On the whole though, this was a Providence conversation, that much more amusing because it actually featured old Providence friends, some of whom the Unpronounceable Name knows (of) via her professional circles.  It's a small world, but an interesting one; Miami continues to surprise.   

Glass Heart Uncracked

And so I finish my first courtroom stint with a whimper, not a bang, as nothing has gone to trial recently, nor have any of my specially researched issues come up - and so the caselaw and arguments sit dormant, waiting for the right client.  But I'm still in one piece and haven't picked up a contempt charge yet.  Which is good, and firmly in the non-bang category. 

I've been having productive "So how do you defend those people" conversations recently, but ones that are not the usual kind (as in, "the criminal justice system is an adversarial process, etc.")  In related thoughts, I've been rewatching Battlestar Galactica in the evenings - the cylons just took over New Caprica, and the recurring lines are:  "What do we do?"  "Fight 'em till we can't."  Which is basically the personal attitude you have to have. 

Last night was spent with red wine, good conversation (although not so much about what I do, thankfully), and a lot of walking about at odd hours.  Good head clearing walking though - I wasn't the only one apparently, as I got 4 post-midnight text messages from various people who didn't sleep.  Something is probably in retrograde.  The rest of this weekend should be a sedate one.  I've already made soup and am thinking about getting the sewing machine going to make some alterations.  On-the-bike Scoplaw is several inches less around than the Not-on-the-bike Scoplaw.  Plus, since I won't have umpteen cases constantly rolling for trial, any which of one might go, I can wear some non-trial/general work suits in the courtroom.

Wasted Wishes

So I got back on the bike, twice, and tooled around the keys.  It was just enough to get my metabolism back up and let me know exactly how much this two month long coughing/sickness jag had taken out of my cardiovascular system.  Still, even with my reduced wind, I wasn't completely hopeless after my long bikeless stretch.

But then came the sunburn across my back and shoulders, which was decidedly unfun.  I got to meet some very nice people (a professor, a school-teacher, a med student, and a roommate) while still in the "I can feel every fiber in my shirt" stage.  I talked (briefly, but more to come I hope) about Thoreau and Emerson.  In Miami.  With someone who knew what they were talking about.  (!). 

Today was the bubblepop phase as all the blisters decided they'd had enough of being blisters.  It made for an itchy and uncomfortable court calendar.  Still, when you have bubble-wrap packing sheet issues like I do, it's kind of fun when your back is magically transformed into a similar substance.

So now it's just me, a glass of red wine, Tylenol, the Red Sox on the radio, palmer's lotion, a raging appetite, and another week without trials.  Meh.  I won't even get into the latest state absurdities.  People are facing layoffs and there's vacillation on the most obvious of money-wasting-for-no-point issues.  Well, we all can't be appreciative of Kantian ethics, I suppose, when justice-at-any-cost results in injustices elsewhere.

All in all not a bad week.  I'd endure the sunblisters for good company any time.  Although the two are not related in any way.

Judicium Interruptus

These last minute Nolle Prossequi are just killing me. . .and I had the double-barreled testimonial hearsay exclusion arguments (State and Federal Constitution) locked and loaded.  I don't even think the state knew - they just knew I wanted to go.  And I so did.  Grrr.

I need to eat less junk food and get back on the bike.  (Really, I'm not sure how this paragraph connects with the first.  Suggestions are welcome.)

The Samely Different (a post in which the author of the blog touches on past, present, and future, in his usual rambling quasi-autobiographical way.)

Well, some email has rolled in, given the tenor of the next-to-last post.  So, I thought I’d sit down and try to see what’s changed with me in the past year or so.

First though, I have some BIG news – I’ll be shipped out of my old division to a new one soon. That means a new judge, new clients, new types of cases (basically the old crimes cases with the addition of traffic cases), and a new trial partner(s).

Most important, my clients will be OUT OF JAIL!!! That changes everything – for example, a defense continuance no longer means several weeks of my client eating bad food, wearing an orange jumpsuit, being crowed into unsanitary, insanely loud, constantly lit, and freezing concrete and metal surroundings, while being separated from his family, simply so his attorney can get something crucial squared away.

Yea! (that deserves its own paragraph.)

In other changes, my Mental Health client load will be nearly non-existent by comparison, giving me more time to focus on that. I’ll be actually in the office (instead of in court) during regular business hours. So I’ll be taking more depos, and doing a different kind of investigatory work. I also expect my motions practice to pick up, which could be interesting since that used to be one of my strengths before I began work in my “they’re-in-jail, just-try-it” division. My workload is probably also going to drop, in the sense that I won’t be pulling 7am to 9:30pm days (as I did this past Thursday).

Outside of the court room, this means I’ll be able to be more in Miami itself (during daylight hours) and take care of some personal things that have been on the back burner during my stint in my soon-to-be-old division. (No more vacation days burned on getting my student loans in order!)

Or so rumor has it. I haven’t gotten official word as I was in trial (post below) when the news was announced.

I’ll be sad to leave my current courtroom(s) and my trial partners. Given the staffing travails we’ve undergone, what with people leaving and being sick and coming on to be trained, it’s sort of the worst time to leave, from my selfish perspective. Since we’re just now cruising at full strength I want to keep the pressure on the state (This has resulted in 4 jury trials in 2 weeks, to say nothing of the 2 cases the state nolle prossed last-minute before picking a jury, with our client dressed in a suit and sitting at our table!)

However, its also perhaps the best time to be moved, since things are working well. I told my mom fighting the state was like keeping your hands around the closed jaws of a snake – you don’t want to let go until you’re sure the next person has a firm grip.

I have *every* confidence in my trial partners – I just wish we had more time to develop even more strategies together, since we have changed how we found our division in pretty significant ways.  In fact, just today, I was reviewing some old materials and came across a note written by one of my partners that said “Go on X, not Y.” I had asked him to research a last minute issue that would determine how we’d attack one particular argument the state was going to be making. We had only the most minor of opportunities to discuss it (trials are fluid things). I was busy with other trial issues, so he just handed me the note, right before the issue was ripe. And so I stood up and did my thing, fully trusting that my partner had framed the issue correctly and was going to be able to back me up on it. He had, and we won pretty convincingly. It takes awhile for me to develop that level of trust with people, and I’m going to miss having both my partners at my side.    

I’ll only be across the hallway though, so I’ll be able to pitch in as required, certainly with the daily heavy lifting if someone’s sick or ill.   

I’ll also be sad to leave my judges – the 3 regular judges I’ve had, plus the recurring covering judges we get from time to time. I felt I could work with all of them – although each of them has their own unique style, and none would ever mistake one for the others. 

I’m wondering how different things will be with my new judge. I know that the protocols of that courtroom are different (more formal), which might even be something of a welcome change. I’m getting very colloquial in my practice – I almost addressed a judge as “Judge” the other day, instead of “Your Honor”. Seems like a small thing I know, but it’s emblematic of what I don’t always think is an appropriate relaxation on my part. I’ve heard very good things about the new judge, and already have some expectations about what kinds of things I’ll be able to do in that particular courtroom (as opposed to being in *any* courtroom with less clients, daily drama, and more time to get truly creative with my practice).

I think the funniest thing is the new judge’s demeanor on the bench, which has drawn both praise and criticism from the various and sundry defendants, witnesses, courtroom personnel, advocates and attorneys. I told my mom the good and the bad on the phone yesterday and she started laughing, “But Scoplaw, that’s YOU!” And not-quite-sadly, I had to agree. So it should be an interesting ride, given that I don’t always respond to myself well.

**

As far as what’s changed with me in the past year, I think there are a number of lines anyone can draw in their life – significant events which change the daily tenor of what we do, or even, how we do. But such lines are never nearly as clean as we subsequently pretend them to be. So with that in mind, I’m drawing a line about 9 months ago, although what happened just before and just after make it a broad fuzzy line. 

About 9 months ago, I moved to FL – not knowing more than two people in the entire state south of Orlando. That whole surrounding period, from May to August, was pretty momentous: the final dissolution of what had been a very important relationship, graduating law school, leaving DC (which on some level I still love, and with which I had a good life), studying for the bar, taking that exam, taking on new and very important responsibilities in a strange place, wherein I didn’t know the local lingo and customs. All in all, it was a story about moving from the familiar to the unfamiliar, about relying on what I knew, and trying to make new things happen.

Basically, as soon as I arrived, my work took over my life. However, even early on, I was able to get a lot of things done that I wanted to, and the degree to which my work has impacted my free time has only changed for the better, albeit slowly. So, yes, I still do the very Scoplawic hunting through junkstores, visiting libraries, watching movies, reading books, writing poetry, buying and cooking food, building and riding bikes, socializing with interesting people – but all these not as much, and all these somewhat more desperately snatched from the mundanities of dishes and laundry and vacuuming and getting suits and shoes and self ready for court each day. However, a good deal of “moving to a new place/starting a new profession” things are simply done by now – no more bar exam/character and fitness review to eat up my weekends, no more trying to find adequate local suppliers of avocados and bicycle parts.

What I haven’t been able to do is take on any significant new learning (I had fantasizes of resuscitating my Spanish), although I have picked up a few things here and there, as I’m wont to. I’m also not sure I’ve had enough reflective time to really come to grips with all the changes that happened in my life in that last bit in DC phase. I know I have, and that it’s mostly done. I’m not sure it’s entirely done or not. Which is part of the problem of not having enough reflective time - these things have to be tracked, not thought about once or twice.

The really significant learning/growth has come mostly from courtroom/trial experience, as well as from rapidly moving through a lot of clients.

The office down here was tremendous in as far as it gave me both training and discretion to do what I thought I could for my clients. After an August shadowing a truly exceptional felony attorney, and a crash course (self-taught) in FL crim law/procedure, I was moved into the most frenetic division in county court. At first the workload was overwhelming, as was the feeling that I just didn’t know what the hell I was doing. I was able to keep going though, largely because I knew that Law School, whatever it was, wasn’t interested in teaching and drilling the skills you need to succeed in a courtroom. Of course, Law School, especially the clinic, was invaluable in actually getting me ready for the job as well – just not always in the most obvious ways.  I have to say there’s no way in hell I’d have done the job well without my clinical experience. The summer internships were crucial, but the clinic gave me a way to personally contextualize the abstractions of the law into actual client representation; it taught me about practice and set me in motion.

So, after a relatively slow start in terms of trials, I’ve been able to get my feet under me and get some stuff done. I have my favorite moments (and some never to be repeated arguments) and on the whole, I think it’s been a tremendously great experience, no matter how much I whine about FL as a cultural wasteland.

I’m *much* more comfortable in a courtroom, even in front of a (literally) red-faced and shouting judge. I feel I have some grasp of both trail strategy and technique. I’m at least becoming somewhat acquainted with the rules of evidence in a practical way. (There’s an analogy to be made between literature academics in relation to poets, and appellate lawyers/law academics in relation to trial attorneys. You tend to use the same rules/information differently, and one seldom appreciates the other’s efforts.)

All in all, in the past 9 months, I’ve been to jury trial about 16 times? plus another 4 or so dispositive motions where witnesses were called and crossed. We’ve had probably twice that number of near misses (cases we’re completely ready on), ranging from nolle prosses early on during trial day, to (more rarely) ones given in the middle of actually picking the small panel. If we considered the number of cases the state declared ready on at the day of trial, which we then discovered had fatal flaws, turned over our cards, and got the state to drop the charges, I’d guess it would be about 60 or so. I’d also have to guess we’ve had well over 10 motions to dismiss (no witnesses called) granted by the judges as well. (Oddly, I don’t remember the wins all that well. I do remember each Guilty verdict quite clearly though – there are 4 of them, 3 single counts and one split.)

The backdrop to this is about 1500 clients (just me personally, not my division) the vast vast majority of whom are offered and take credit-time-served sentences, with or without a formal finding of adjudication, at one point or another.

I’m not sure I could have done this in any other office in the country. I mean, anecdotally, I think my experience has been unusual. It’s certainly subjectively recent to me in odd ways. Someone asked me (questionnaire) what my profession was. I said “attorney” – but it felt kind of weird to say, like I was still pretending at it or something.

Anyway you slice it, it’s a tremendous amount of courtroom experience to digest – and I’m sure I haven’t done so as well as I ideally might. And that, in effect, is what’s been largely occupying my brain for the past nine months.  There are a lot of things I haven’t yet done, but I think I’ve gotten a tremendous exposure to trial practice, plus a sampling of the more random scenarios and unusual hearings.

So, I’m largely the same, everything’s still there. I’m just working with a different focus at a different level of intensity. I may not have as much time to write long posts about poetics, but for now I must leave that to others, without very much regret.

Or not, depending on what happens with the new division.   

Luck is the Residue of Design

Sometimes you think you'll have good arguments - sometimes those arguments get shot down one after another after another.  So it pays to lay some arguments here and there and then touch on them in close, because you never know what a jury might do.

Tonight, after a grueling 8 hours of picking jurors, crossing cops, and fighting over evidentiary issues, we were left with not much of a case at all.  And the jury went out and out and out and out and announced they were hung - no decision would be reached on the case.  (For us, that's a victory - our client isn't hurt and we make the state try their case again.) 

The thing is they hung on one of those small throw off phrases that you just say in your close.  We spent no time developing it in trial, and just pointed out it's lack in (literally) a four word phrase. 

Hell yeah. 

Hit by the Trial/Good News Truck

That'll teach me to be frivolous in my posting.  (Snort.) 

In any event, after trial on Mon./Tues., I really didn't expect anything to go the rest of the week.  Which means, of course, that I ended up in trial on Wed.  That one went as badly as it possibly could have gone.  We went down swinging in an appeal rich environment.  I'd go into details, but for the appeals issues.  The client got credit-time-served though, so we can notch that one up as a no-harm-no-foul loss, albeit a frustrating one, partially because the client was so upset at the verdict (as opposed to the sentence). 

Thursday featured yet another trial, but this one I sat out, due to some medical testing/prep stuff that I had to do.  I mean, I'll do a lot of crazy things, but second-chairing a trial with short notice and a 48hr liquid diet is not one of them.  However, I had told this particular client I would be there for him, so I sat in the gallery, sipping sugar-water, fetching and hi-lighting caselaw, and talking with the client when the jury wasn't there.  Technically I wasn't "on" the trial, but for all intents and purposes I was, even in my glassy and sluggish state.  I have no doubt that sitting was the right thing to do, given just how crazy-good the Lioness's voir dire was.  I took notes.

(Oddly, had a different client gone to trial, I'd still probably have suited up for that one, since I'd had it completely prepped and knew those particular arguments inside out.  It was basically a repeat of a case I'd done twice before - I can pretty much do the MJOA on that one cold, given that the caselaw hasn't changed and is, in my opinion,  remarkably clear.  I think the judge knew that though - she dismissed the case over the state's objection.) 

The Thursday trial resolved with the jury splitting the baby for the Mayor, Lioness and Baby Bull.  That usually means the jury thought something was fishy and returned a Not Guilty verdict on one charge and a Guilty on another charge, even though such a result was somewhat intellectually inconsistent.  Having sat in the back for the entire trial, it really didn't make sense to me.  Juries do what they do - and one can never perfectly predict what that's going to be.  Oddly, the client was ecstatic -  he felt completely vindicated by the NG and felt he could live with the G count.  Again, clients so what they do, and one can never perfectly predict what that's going to be either.

On Friday, the Mayor made some brilliant and technical sentencing arguments (having to do with base  charges and enhancement statutes) that resulted in the judge only being able to sentence our client to CTS.

So we ended the week with one MJOA win, one Guilty CTS (client upset), and one Guilty/Not Guilty CTS (client super-happy and empowered).  Not a bad week all in all. 

However, I wasn't there on Friday to listen to the Mayor's arguments - instead, I was under the influence of anesthetic, which ultimately resulted in some very good news.  I'll explain.  I have a chronic disease (not contagious, thank you) that's been quite the pain to deal with at times.  However, I opted to go after it aggressively years ago, which meant not only religiously taking meds, but changing the way I ate and slept and exercised, and in general being very conscious off all aspects of my physical and mental self in relation to this thing.

I could have done things "better" in an obsessive way (running the risk of defining myself as a mere response to a problem) but instead I adopted the "most of the time" principle - it's far better to do things most of the time in the way they should be done most of the time.  It lets you off the hook as far as being perfect, encourages you to try new things, makes the burden you've taken on manageable, and ought to be enough to sustain whatever it is you're trying to do.  Certain activities - parachuting, bombing an intersection on your bike, or legally representing someone, do not, I hasten to point out, lend themselves well to this approach.  I was a bit worried about going back to law school and becoming a PD, since this thing gets worse with a) stress, b) bad diet, c) lack of exercise, d) lack of sleep.  (Actually too much exercise is bad also, which is frustrating.)  But I think the "most of the time" principle worked well enough for me, and I was able to deal with this thing as being always at my elbow, as opposed to being always in front of me.

I went asymptomatic awhile ago, but you never know how close things are to coming back - you could wake up any given morning and it could be there, full strength.  It's happened to me before, which is just kind of crushing, knowing that everything you've tried to gain is gone, and you'll be laid out for weeks or months before starting at zero again.  It makes long term planning difficult.  Among other things.

Anyway, here's the completely unexpected good news.  Based on the Friday tests, I'm glad to report that I'm now totally in remission, but in a way that strongly suggests this thing might be completely gone, never to return.

I think my MD was more excited than I was, since this happens so very very rarely.  He was actually bouncing when he told me, whereas I was just stunned (or still partially sedated).  But the bottom line is that I'm no longer just holding this thing at bay - it seems to be gone, for all intents and purposes. 

So our new plan is the same as the old plan - cautiously stick with what I've been doing for six months to a year, do another round of biopsying, and then, based on those lab results, quite possibly take me off meds.  The meds I don't mind so much.  They treat the symptoms but not the root cause, and essentially should give me a bit of breathing space to fight this thing down.  They have no side effects worth worrying about, and they're all certainly worth the benefit.  What's exciting is more *the idea* that I don't have to take meds, that my body's finally kicked this thing out on it's own, with everything that means. 

While I can't really say the impending tests were severely weighing on me (since I was expecting yet another "same as before/slightly better" result), they certainly occupied some part of my brain.  I didn't expect this stark shift from one "most likely future" to another, in which the previous "most likely" is now only a distant and unfortunate possibility, just like any other random thing that could befall any of us.  In other words, the bullet is now anonymous - it's had my name taken off it.  Which sort of changes nothing, but sort of changes everything, as I can discount some particular and specific nightmares.  All this is going to take some adjusting, and I'm curious to know just how this is going to impact what (and how) I do.  I mean I can guess, like for example, my recklessness becoming less fatalistic, but I'm still kind of overwhelmed by it.  I mean I just hadn't considered (at all!) that this could happen.  In fact, any daydreams I'd had were of the regretful "cripes, why did I have to get this" variety, and not of the "one day it will be gone" variety.

So, in light of all this, I spend Friday evening modestly celebrating with the Fiery Professor and the Kayaker.  We had stone crabs and wine on the water - it was quite nice.  I even (gasp!) drank white wine as chosen by the FP.  Those who know me should understand just how great of a token of my esteem this is.  We then had some desultory debate/sparring on academic scandals, crabs, marriage and family, and the lack of a liberal/leftist/over-25yr.old crowd in greater Miami.  This town's going to be that much dimmer when the FP departs on her upcoming sabbatical. 

All in all it was a good week.   On Sat. I had brunch with the Kayaker at a cop restaurant (no unfortunate encounters) and then strung up my hammock, in which I logged some serious napping/trash reading time in the balmy afternoon. 

This should be an interesting week coming up. 

First off, I'll obviously be doing some thinking about what my long term future now might include.  Will I feel/act like a weight's off me?  If so, how and when?

I'm also getting a new judge, as one of my former judges is getting transfered to a different division.  I have admired my new judge from afar for quite awhile, and have been in front of him only once.  It was a pretty awesome once though, and I'm looking to being kept on my tip-toes (in the best way) by this man.  Safe to day that a trial in front of him will not be the same as the trials we've had in front of the departing judge.

I think I can also say that we're officially back to full strength in the courtroom - the Lioness has never disappointed, but now she's had time to absorb most of our arguments and do her own thing with them.  Baby Bull is coming along (not that he's had all that far to go) and is pretty much seamlessly folded in to what we do.  (I think we've gotten him more trial experience than many of the regular PDs in our office, and in fact I'd be comfortable with him alone as my second chair.)   Such things as "full strength" are fuzzy concepts and thus hard to date, but I'd say that 2 weeks ago there wasn't the same kind of positioning as we have right now. 

So I'm sort of tentatively viewing this just-past 3-trial week as something of a turning point.  One thing I'm certain about is that a lot of old patterns are going to be reset in the next few weeks, and I have to say I'm looking forward to it.

Over and out, onwards and upwards.   

MJOA

It's fun to win at the M-J-O-A.
It's fun to win at the M-J-O-A.

(To the tune of YMCA by the Village People.) 

Yes, once again the state crumbles in the "bringing it" department, with some gentle help by the defense.  And it's all the more satisfying to win at MJOA after a 3 hour jury selection.  (By comparison, I think the testimony didn't even last for 25 minutes.)   Not my best arguments on this one, and things didn't go as smoothly as I'd normally like.  Due to the odd procedural footing, the argument was more like a glancing blow that knocked the state off a cliff, rather than a solid hit, dead-center, to the state's case.  But it was enough, and that's something. 

It's great when you have a nervous client that gets calmer and more confident as things play out just like you told him they would.  Often, clients get hung up on things that seem important but are not - say, a fact an officer is lying about, one which we won't be able to impeach him on, but one that has no impact on any of the elements and is not so-prejudicial as to sway the jury.  Also, it's not every client who trusts you when you tell them, "This thing you think important will not matter, neither in our arguments to the judge, nor our arguments to a jury."  I'd have liked to have known what this particular jury would have done after our close, but I didn't have an opportunity to interview them after they were discharged.

By contrast, in utterly depressing news, two of my favorite people in the office apparently did not pass the FL bar exam.  Which makes even a good win seem hollow. 

Addition to Jorge Luis Borges' "Book of Imaginary Beings"

The Ethical Prosecutor

In American Cosmology (TV) the Ethical Prosecutor is often seen hard at work on every channel battling the Evil One, usually a murderer or child molester/murderer or some educated liberal.

Unencumbered with the uncertainty of not-knowing if the Evil One is actually Evil (for he *is*), the Ethical Prosecutor need not bother with bringing forth exculpating evidence (there is none) nor respecting any of the Evil One's constitutional rights (because none apply).  The only time such concerns come forth is from the smug mouth of a greasy haired defense attorney, much to Ethic Prosecutor's resigned dismay.  The basis for constitutional rights attaching is usually some trivial mistake made by law enforcement officers.

If the Ethical Prosecutor makes a mistake, or must answer to an out-of-touch judge dismissing a search, the Deus Ex Machnia fix is sure to follow, with the Evil One getting their just deserts (often via Clint Eastwood) in the form of death or mutilation.

Barring this, the Ethical Prosecutor will be able to produce a smoking gun close at will, chastising the Evil One while proving beyond all scientific doubt that in layman's terms, "he was there, and he done that shit."

**

In anecdotal court-reportage (i.e., the real world), the Ethical Prosecutor is a much rarer specimen.  Rumors abound of foggy photographs purporting to show Brady material being handed over, or cases being dropped when the Prosecutor has reason to believe their officer witnesses are lying.  No one goes so far as to suggest that they've heard of a prosecutor *agreeing* to a defense attorney's 403 analysis of any issue.

The transformation from simple State Attorney to Ethical Prosecutor is elusive, often disguised by the fact that there's little or no change in tone or appearance.  Yes, lurking behind the doe-eyed blink-blink of the State Attorney as officers contradict themselves on the stand, there could be, could be, an Ethical Prosecutor.

The Scoplaw claims to have seen such a creature once, but no one takes him seriously anyway.

Dinner

And of course, it never hurts to have the option of taking a break from court-thoughts with a friend (and wine and dinner on the water).  This was the view on Thursday night from her building's patio.  Just another ho-hum 70 degree spring night in Miami.

Not Much News, but Much Blinking

It's been a long hard week of nothing much at all. 

Most of the week's energy was spent being a backup on a colleague's trial involving a former client of mine.   But not really.  It's kind of complicated to explain, but I'll start with our practice of backing each other up in trial. 

First off, I have to say it's a simply awesome lift to your spirits when you're working hard right before a trial and 4 other APDs float in to say, "Hey, any last minute issues I can pull case-law on?  Can I get you guys some food?  Anything I can do to help?"  It's clearly the right way to practice in our relatively small division, and it's something (in my opinion) we as a group are especially good at.  I think it's made a huge difference in some trials - having an instant research team to run right out and get something.

Usually my courtroom is the one that benefits from people coming in because we tend to go to trial more often than any other courtroom, plus we work longer calendars in court and thus start trials later in the day than anyone else.   However, now that we're up to full strength, we have the option of leaving the courtroom during our regular day (if we can) and helping out elsewhere.

On that particular day, we had to deal with the fallout from my colleague's trial.  It worked like this; for various good reasons, one APD replaced another APD on that trial.  This replacement created a sort of domino effect because the replacement APD's courtroom had to be covered and yet another trial APD had called in sick.  (So we couldn't just swap APDs - we were short).  We had one trial going, another which was set on calendar last minute which might have gone, and a third more regular trial which also might have gone. 

The result was that, instead of gophering full-time on the first case, I ended up being co-counsel on the third case.  It was a really good fit.  While I would have been in front of that particular judge for the first time, I had seen the judge in trial before.  However, I was going up against   one of my old prosecutors, and I was very comfortable with the facts of the case, the charges, and the applicable caselaw.  I was also very much looking forward to doing a trial with the APD of record in that court-room - she and I had never been to trial together.

Well, it turned out that the second case was nolle prossed after the state reviewed a video of the event.  A video they had.  It was about an hour away from picking a jury.  Blink. 

The third trial case (mine) was (in my estimation) an impossible-to-prove case for the State.  So I kind of liked it.  And, all the sweeter, we had that APD to pitch in from the now-dead second case.  I had also never been to trial with her before, and she's a rockstar.  So we prepped fully, were ready, and went right down to the wire. 

Blink. The State announced a nolle pross minutes before we were going to pick a jury. 

The Judge wasn't too happy with this behavior from what I gathered, but I was out the door on my way to  that stressful first trial case as the dressing-down of the State began.

I watched the remaining case (the first trial case) and was available to be a gopher.  It was a slugfest that ended with a single granted MJOA and Not Guilties on the final two charges.

The end result was that everyone had everyone else's back and my colleague got a NG for the client who had set all this in motion.  While we're non-fungible, in these cases it all made sense due to previous client contacts, counsel of record staying on the case, and so forth.  (It would make for an even more boring post to list all that out though.)  I'm proud that there was so much unselfish and behinds the scenes effort.  I told you all that I work with a good bunch of people. 

** 

While we didn't get to go to trial this week in our courtroom, the State also ended up pulling their  last-minute nolle pross stunt in my courtroom.  After being set for trial and declaring ready (witnesses on standby), the State sweetened their offer just before we called in a jury.  It was really the best offer the State could make short of dropping the case.  However, our client stood strong and said that this new sweeter offer was still bitter and that a trial was the only way to resolve this.  (Client also expressed great faith in us - one of the best clients we've had in this regard.)

Blink.  30 seconds later, the State announces a nolle pross.  State gets taken to task about the problem of sweetening an offer but not being ready to go to trial 30 seconds later.  What if our client had bit?  Would that be justice?  What if the client had gone pro se?  These are troubling questions to my mind.

During the discussion that followed the nolle pross, when the prosecutor was saying something, I raised my eyebrow.  The result was an on-the-record gem: "Just for the record, I'm announcing this nolle pross because I can't be certain my witness (on standby) will be here.  It's not because I'm afraid to go to trial."

Oh no - couldn't be that, could it?

Sometimes the best trials are the ones that don't happen for very specific reasons. 

Sunday Sunday Sunday

Well, it was a mildly busy weekend of getting things in order.  First off, I slept for 14 hours.  That's a goodness.

Lungs are also less frothy, so that's a goodness as well.  I'm such a malingerer.

**

I went over my finances - not quite so good, but not really bad either.  I'm in PD water-treading mode. 

And speaking of things financial, I read an interesting article about poverty in the Globe.  All my freaky Law and Economics friends might find this interesting.  The article discusses the ideas behind Charles Karelis's, "The Persistence of Poverty: Why the Economics of the Well-Off Can't Help the Poor." 

The basic thrust of the argument seems to be that a shift in "economic thinking" (if such a thing actually exists at all) occurs when one is subjected to the myriad problems of poverty.  When the sum of those problems become overwhelming, people experince a disincentive to address any single one of them, as 14 more problems are waiting behind it. 

Thus giving money to the poor (reducing the problems/hardships) is more likely to encourage someone to deal with the last few problems on their own.

It's an interesting argument, one which I think has some ancedotal resonance to the kind of issues I deal with every day.  I have relatively well-off (not financially, but not beset by troubles) clients who want to take control of matters and get things fixed.  I have others who are so swamped by numerous problems that it's hard to get them to stand up for themselves - you haven't seen a defeatist attitude until you deal with someone who insists they're innocent but *wants* to take six months in jail because, "what does it matter anyway."         

**

I had dinner with the still vacationing Mayor and his family, including his new puppy.  That dog has more energy than I've seen.  If you put him in his cage, he quietly rests.  You let him out and he has to sniff everything in the house at once, which means lot of running.  I don't think he knew what to make of me.  He'd run over at me, bark, decide everything was OK, lick my fingers in hello, then jump back a few feet and bark.  This happened 4 times. 

**

I'm getting out of shape.  The decision to get a waffle-maker probably wasn't the wisest one.  Although I will be having a Waffle Evening (tm) with some PD friends.  Wine Waffles and Song - that's all you really need.

But it's a good kind of tired. . .

Sunday - prep.

Monday - trial day, 37 cases, all KNP/CTS except for 2.  State tries to get us to go on (arguably) our weakest case.  Really really tries.  I mean like really really really tries to the point that they accuse us of underhandedly manipulating the trial order to avoid this case.  We start to pick a jury but the panel is struck (on motion of the court, although the prosecutor's final question would have been grounds to strike as well.)

Tuesday - regular calendar day - the usual grind.  We pick on that weak case the state was absolutely gunning for.  ("There's no way they can win this case - it's *soo* good for us.")  We get a jury, and go with myself, the Lioness and Baby Bull.  (The Mayor's on a much deserved vacation with his family.)

And we win.  Jury's out for 25min before returning a Not Guilty.  It was a good "hell yeah" moment. 

Our regular prosecutor was backed up by 3 other state attorneys, while we had 2 other PDs helping us out.  So it was kind of a scrum.  Actually it was a drag out, eye gouging, sand kicking fight - surprise last minute statements, suppression motions, discovery violations, motions in limine, cops getting colorful on the stand, and our usual dozens upon dozens of objections during the state's direct (resulting in a few guts-for-garters stares and one denigrating-the-defense comment at state's close, resulting in the court reserving ruling on a motion for mistrial.)

I think my favorite moment came when the state was making a somewhat incomprehensible argument and started citing different statutes and rules of criminal procedure but got the numbers confused.  I got to stand and in a puzzled voice say something like - "But that's a motion to suppress - surely the state can suppress its own evidence without the need for a motion."  (I forget what the actual statute was - it was something about that absurd though.)  Another precious moment courtesy the state and my tax dollars.  Actually my favorite moment would have been the judge and I exclaiming in near stereo (she's faster than me) "That's non-responsive" as an officer tried to weasel in some just-excluded observation of their own on an unrelated question.

So although it was my kind of fight, I'm now dog tired as the trial adrenaline begins to ebb.  We started picking a jury at 2:30 and finished the trial at 9:30.  Given that we started at 8:30 and got a fifteen minute lunch beak, that's a damn long day in the courtroom.

And tomorrow, as usual, is a trial day.  Up and at 'em.

(BTW - I'm not selectively blogging about only the victories as one e-mailer suggested.  Sometimes we don't go to trial on trial day, for any number of reasons.  We've only had a handful of defeats (knock wood!) and they're all recorded here.  Not all of our victories are though.)

Welcome Back (again) Recidivists

Some clients you know you'll see again.  You hope you won't, but you know you will.  And, in a division with as rich a history as ours, sometimes our division alumni will reminisce about certain clients, with the attendant speculative curiosity about where fate has taken them. 

For example, Client X was recently released by our hard work.  (Everyone who has worked our division has had Client X at one point or another.)  A Division Alumnus (DA) saw Client X on the street and called to congratulate me on getting Client X out and wondered how long it would last.   

However, by the time I got this call Client X was already back in.  Division Alumnus thought the next time I was able to get Client X out (if at all possible) he'd only be out for two weeks or so.  I said I couldn't even guess. 

Well, I got Client X out, but here's the tragic thing - he didn't even make it *out of the building* before getting re-arrested over some alleged incident that occurred while he was claiming his property.  That's fast.  And I don't even know if it counts as "out."

**

Some PDs get frustrated by this - I don't really.  It's disappointing on some kind of sympathetic level, sort of like the embarrassment you feel when you suspect others are embarrassed.  But, given just who are clients often are, it's completely understandable.  While we'd all like to represent the well-mannered, articulate, intelligent, virtuous, clean, humble, and easy-to-work-with poor, the fact of our country is that poverty feeds and is fed by low educational levels, psychological dysfunctions, emotional disturbances, personal challenges, addictions of various sorts, and, often self-destructive behavior.  I don't mean to suggest that I haven't had wonderful human beings as clients - I have.  Nor do I mean to suggest that poverty is the just punishment of the poor or anything as perverse as that. 

What I do mean to suggest is that you have to expect that some clients will come back.  And that they'll come back in ways that seem particularly avoidable or tragically cruel.  And while plenty of people will be able to judge them for this (in one way or another) they only get one advocate to help them out of their immediate troubles - and that's you. 

**

In a related note, I love arrest forms written about people in jail.  They always include the standard lines like "Defendant taken into custody and transported to jail without incident."  The defendant is ALREADY in jail!   You sir, are now *more* in jail.