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Oh, To Be A Prosecutor!

For obvious reasons, I’m not going to get too detailed in this post. This post is going to give one example from my own experience of why I think judges these days are not doing their jobs; they’ve abdicated the position of neutral arbiter of the law.

Recently, I had a situation where two different courts required my presence simultaneously. This would be hard enough under normal conditions — that is where it involves two separate courtrooms in the same courthouse — but in this instance, one court was in one county; the other was in another. Neither county, by the way, was my “home” county (i.e., where my home and office are located), so there was quite a bit of early morning, fog-enshrouded driving involved to make even one of these morning appearances.

Now I happen to know that I’m a bit more fanatical about handling all my own appearances than are some other lawyers. I’m not saying there’s anything wrong with the way those other lawyers work; I’m just saying I prefer to handle my own appearances. In the last year, I think I’ve had some other attorney make a courtesy appearance for me perhaps 3 or, at the most, 4 times. I do this not so much for the benefit of the court, but for the benefit of my client. I’ve found that even for the most basic hearing, where nothing is going to happen except to pick a date for another hearing, the client is more comfortable with me being there.

And, after all, that’s no small part of what I’m paid to do.

In this particular case, which has gone on for quite some time, I believe we’ve had more than a dozen hearings. The last several have been essentially “status hearings,” because the court informed us some time ago that there was no way it could accommodate us for trial until sometime later in the year.

So when I accidentally agreed to accommodate two prosecutors’ requests for hearing dates in two separate counties set for the same day, I was bothered, but not terribly worried, about how to work it out. After all, I’d already spoken to the DDA in one county and we had an agreement as to the next court date.

Additionally, I drove to the court the day before to inform the clerk — I deliberately avoided talking to the judge so as to avoid even the appearance that I was trying to have an ex parte conference — of the snafu and to tell her I was trying to arrange for someone to handle a courtesy appearance. From the clerk, I learned that if I had trouble with this, given that there was an agreement between myself and the DDA already, the court could allow the DDA to represent the agreement to the court, the next date would be set and we would all move on. This might seem a little odd and I had no intention of doing it that way, but I’ve seen it happen before in other courts.

However, I managed to contact a defense attorney who would be appearing in that courtroom the next day and who graciously agreed to appear for me. So far, so good.

(Incidentally, I had also explained to the clerk that I could head over there — even though I would be coming from another county — as soon as the first hearing was over. Again, something like this would not be at all unusual. However, I was told the court would be selecting a jury in a death case — one of the many cases which is preventing our case from going to trial — and so it was best to have someone make the appearance for me.)

Both cases are important. For both cases I would prefer to make my own appearances. But the one case is in a holding pattern; the other is moving forward. And, in addition to all this, it was the first time ever that I had another attorney appear for me in this judge’s courtroom. So I didn’t expect there to be any problem.

Now, I don’t know. Maybe it’s just because the judge is an ex prosecutor. Hard to say. But for some reason, the judge was not at all happy about the arrangements I made to handle the fact that I am physically unable to be in two places at once, regardless of the wishes of gods or demi-gods. As I understand it, the judge — to quote someone not related to my case at all — “threw a fit because you weren’t there.” According to the transcript that I ordered up, he threatened to remove me from the case if I was not in court the next time. There were also references as to how old the case was getting, notwithstanding the fact that the delay in our case is caused by the judge’s calendar, not mine (or even the prosecutor’s).

By the way, I learned that the judge was an ex prosecutor — and that he still has quite fond memories of those days — because while selecting his “death panel,” he was clearly beaming as he pointed out to one of the jurors who mentioned having worked at a particular prison that he was the prosecutor who put someone in that very same prison. For some reason, I’m feeling like Mr. Death-Case Defendant should not be looking for an acquittal in his case.

But I digress.

I also don’t need that little tidbit to tell me that the judge is a former prosecutor. A few other things suffice for that: over the last year, the prosecutor in the case has had others stand in for him on numerous occasions when he had conflicting appearances. To my knowledge, he did not typically contact anyone ahead of time to let them know he would not be personally present. He certainly did not always contact me.

Perhaps unsurprisingly, not once did the judge suggest he was going to remove the prosecutor from the case if it happened one more time.

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