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August 11, 2005

Thank You, Your Honor

Done. My 2L summer job is over. It was over yesterday, actually, but instead of thinking too much about it we decided to take the new car for a drive and the dog for a swim so we went to Quiet Waters Dog Beach outside of Annapolis. The doggie, she does love to swim.

But, and so, I;d like to offer some sort of look back at the summer, to say some of the things that I felt unable to say as I was going through them, but I'm still not sure what to say.

I did end on something of a high note, though. As expected, one case I was working on got nol prossed. The prosecutor moved to nol pross, the judge asked if I had any objections, I said “no, your honor,” and he said, “Congratulations Mr. Imbroglio, you just won your first case.” Hooray! And it's true, in a technical sense—a nol pross is certainly not a loss since it means charges are dropped and the client is free to go. Of course, it also means that if the state gathers more evidence it can bring the charges back, but this wasn't the type of case where that was likely to happen so I'll call it a win.

In order to get to the nol pross I had to convince the prosecutor that she had no case. I thought it would be easy—my client was charged with trespassing but his name was on the lease for the property on which he supposedly trespassed. Since you can't trespass on your own property, he simply committed no crime. Sounds pretty self-explanatory and hard to argue with, doesn't it? Apparently not if you're a prosecutor. When I showed her a copy of the lease w/my client's name on it and explained the situation, she looked a little shocked and turned to the arresting officer and asked, “is that true?” Um, huh? Cops don't know the law, Ms. Prosecutor—that's really your job.* The cop didn't know, so the prosecutor asked, “Can we still get him?” Again, the cop didn't know. So I told them both.

“You can try,” I said, “but the law is pretty squarely against you here.” Then I made my mistake. “If you want to get a leaseholder off of some property the only legal means would be landlord tenant law, but not trespass.”

A lightbulb seemed to flicker on in the prosecutor's head and her mouth firmed back up into a thin smirk of satisfaction. “Fine. Then we'll evict his mother,” she said, an edge of threat in her voice. I didn't know what to make of that; did she really expect me to advise my client to plead to a crime that was not a crime because she was threatening to evict his mother!? Whatever the case, the cop was right there with her. “I'll call the landlord this afternoon to get it started,” the cop said. Great. Awesome. I had to open my big mouth.

But it's not so bad, I think. For reasons I won't go into, mom is unlikely to be evicted, but it's likely my client will have to take his name off the lease. That seemed to be fine with him. The point is that my client did not break any law but these two were determined to inflict some damage on him, anyway. I know a simple trespass charge is small stakes, but sheesh. The term “overzealous” comes to mind, if not worse.

The second case—another trespass—also involved negotiating with the prosecutor but this time for a plea. This one was trickier because my client had no real defense except for some possible technical defenses that sometimes work w/this judge and sometimes don't. My client was interested primarily in keeping his job so he either wanted no jail time or jail on weekends only. He also had suspended time hanging over his head from a prior conviction so he was worried about being violated on that, too. I was able to talk the prosecutor into half the jail time she wanted, served on weekends, and no violation on the previous time. My client can keep his job and he's thrilled. It would have been nice to go to trial on that because we had at least a 50% chance of winning and it was unlikely the judge would have given a worse sentence even if we had lost. However, the client was more comfortable w/the greater certainty of an agreed plea—his real priority was keeping his job and we made that happen so I felt ok about it.

As I discovered in my first attempt at representing a client, it's pretty exciting to prepare for a possible trial and then to negotiate with the prosecutor and finally go before the judge. Even if I didn't end up saying much in court, there's little doubt these clients got better outcomes than they would have w/out an attorney and that's what it's about. Something I realized I need to work on is keeping a sort of straight and neutral tone with the prosecutor when he/she tells me what a rotten scumbag my client is and why he really needs X-number of days in jail or whatever. It's easy to sort of get heated about the fact that the prosecutor seems to be acting unreasonably or unprofessionally, but that doesn't really help. The art of arguing w/out really sounding like you're arguing is a delicate one and something I'll need to practice.

Overall, the summer was a good one—not great, but good. I believe I set my expectations too high about how much actual practice I was going to get in court, so that was a little disappointing. As you may recall, I was really unsure whether it was a good idea to spend a second summer at the same office where I spent my 1L summer. When I decided to do it, I had several good reasons, but the top of the list was that I thought my familiarity w/the people and the office would help me get more time in court. There are many reasons that didn't happen, but now, having been through it, I will say that those who advised against this were correct. If I had it to do over again, I would not return to the same office for two summers simply because the chance to see how another office works is invaluable. While I am more familiar than ever w/how the lawyers in “my” office work and what the atmosphere and caseloads are like, I have little clue how these things go anywhere else. This leaves me facing a job search w/less information than I'd have if I'd gone somewhere else this summer. It's not a tragedy, just a lesson learned.

That said, I do feel like I got some great experience and learned a lot this summer. It would have been difficult for the experience to be as eye-opening and inspiring the second time around, but it was still a full and rewarding experience that increased my preparation for becoming a public defender. If anyone in that office reads this: Thank you! Thank you! Thank you!

* Ok. Cops do know some law, generally speaking. Many don't know the difference between a stop and a seizure, and that can end up being good for our clients sometimes, but cops generally have a basic familiarity w/a few points of law that are important to doing their daily jobs. I would not be surprised if many cops knew that you couldn't charge a leaseholder w/trespassing, but the prosecutor should know that, too.

Posted August 11, 2005 10:35 AM | 2L summer

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"'Fine. Then we'll evict his mother,' [the prosecutor] said ... [T]he cop was right there with her. 'I'll call the landlord this afternoon to get it started,' the cop said.

Whoa - the COPS are going to tell the landlord whom to evict???

Under what authority?!?! Leases are civil matters - not for the cops to mess around with. Plus the tenants have contractual and property rights in their tenancies. For the police to mess with those rights is a huge due process problem.

(Good to hear that you had a nice summer! :-) But that bit just set me right off...)

Posted by: Cathy at August 11, 2005 11:33 AM

Absolutely -- the cops have no business telling landlords whom to evict. One note I didn't mention is that the property involved is public housing. Because of state and local laws, the cops are allowed to control access to the property -- at least in terms of trespassing -- as if they were the owners. This seems to make them think they can also act as landlords for purposes of civil law, which I'm pretty sure is not the case but I'm also pretty sure the public housing people aren't going to stop and check that if the cops say "Evict mom!" For me this is just a great example of how a bunch of large, interlinked, bureaucratic arms of the state can come down to crush people -- which is why we need good public defenders!

Posted by: ambimb at August 11, 2005 12:49 PM

I feared there was a public housing angle...

Your client and/or the mother needs to get with a housing attorney STAT to try to keep from losing that benefit. Public housing is notoriously intolerant of anything less than saintly behavior on the part of the tenants. And if the cop was serious about following up (though hopefully it was just an idle threat that you deflected) with the housing authority they really will start eviction proceedings. The client/mom needs to be on the ball then to make sure he/she gets a hearing and can defend against any accusations. This process can be quick, so if they aren't careful they can lose their subsidized housing - a huge loss for them, without which they might be homeless. So as soon as they are served with any papers, they need to bring them to an attorney right away. (Or at least file an answer themselves.) Since ultimately there was no criminal charge hopefully this will be easily defensible, but they're going to need to go through the process if that cop was serious about making trouble for them.

Sorry... your summer is leaking into my summer...

Posted by: Cathy at August 11, 2005 01:11 PM

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