Why We Do This

I had my first contempt hearing last week; the issue was: Could the government show probable cause to believe my client committed the crime of contempt? The government had to show that my client intentionally violated a condition of his release. I was loaded up with just over 25 questions for the arresting officer and a half-page of argument, even though my supervisor said we were destined to lose b/c probable cause is such a low standard. The point of this hearing was simply to give us as much information as possible to prepare for trial on the issue. Apparently many defense attorneys just waive such hearings because they so rarely win, but I'm told that's a really poor thing to do because you miss the chance to possibly gain that extra bit of information that will help you at trial. While waiting in court for my case to be called I actually saw several attorneys waive their clients' contempt hearings. Maybe they had good strategic reasons for doing that, but, well, it didn't look like such a great idea.

It looked like an even worse idea after I actually won mine! To just about everyone's surprise (including the judge's, I think), somehow the judge became convinced that the government had not shown probable cause. I'm thinking this is why having law students in court can sometimes be a great advantage for clients—judges don't want to shoot the puppy, so they sometimes give you a little extra benefit of the doubt. I was also lucky. The cop said exactly everything I hoped he'd say in response to my questions (in my first real cross examination ever), so he basically made my argument for me. The prosecutor seemed caught off guard that the judge was actually taking my argument seriously and so was unable to mount a real counter-argument. He could have easily shot me down, but I think he just hadn't thought much about it because he hadn't planned on needing to argue the issue.

The hearing lasted about 35 minutes and when it was over I could barely believe what had happened. And to blow my mind further, after the court had recessed another prosecutor who had been watching the hearing came up to me and said in what seemed a very serious way, “Nice job.”

My client was pretty happy, and he's free for now, so all in all it was a very good day. Even though this was a teensy tiny little hearing, a very simple legal issue, there's really nothing like the feeling of prevailing in court when even you think you're going to lose. And although it's inevitable that I will lose more than I win, the hope that next time might do the trick and you'll get that feeling again is least part of what keeps criminal defense attorneys going.

Posted September 4, 2005 01:55 PM | 3L