Conviction? Oh, that's clever.

Dick Wolf, Mr. Law and Order, has a new show that sings the praises of the beloved prosecutor. The show is called “Conviction.” You know, that's what prosecutors get b/c that's what they have.

(Excuse me. I just had to pause there to get a drink because I was starting to gag a little.)

From the name alone you can tell this is just going to be a top-notch show. And the opening scenes do not disappoint, setting up the whole cliched sympathy story about Nick Potter, the hot-shot law student who went to a great school (NYU) and has rich and powerful parents and friends but who turns down the big money firm job ($150k/year!) because “I really want to try cases.” You might think that's a bit of a dropped ball; if the guy really had conviction, wouldn't his motivation be to protect the public and put the bad guys behind bars? Of course it would! But don't worry, the show knows what it's doing—Potter can't just be born with the required conviction, he's going to have to earn it.

As Potter goes about this task, the show makes sure to hammer us over the head with the righteousness of the prosecutor's profession just about as often as it can. Take, for example, our young hero's first meeting with his supervisor. As young Harry, er, Nick Potter is leaving his supervisor's office he points to a picture of a young, blonde, white girl pinned to the supervisor's bulletin board. “Is that your daughter?” Potter asks. “No. Murder victim,” the supervisor mutters. Hammer, meet head.

But it gets even better when a prosecutor is killed “in the line of duty.” (Because, well, you know, that kind of thing happens all the time.) The message is clear: Just like the cops, these valiant prosecutors are putting their lives on the line every day just to keep the streets safe for you, dear viewer. Don't you love and admire them?

To its credit, the show does not depict prosecutors as saints. They oversleep, drink too much, and have problems in their relationships. Sometimes they even make little blonde girls (there's a theme here, it seems) cry in order to make them testify so they can put the bad guys behind bars. Of course, that prosecutor had to make that little girl cry because of the cruel injustice that is the rule against hearsay and the defendant's right to cross examine witnesses against him. If not for that, the prosecutor could do the right thing and lock the bad guy up on the basis of videotaped testimony alone. Damn that pesky Constitution!

To further make the point that prosecutors are only human (but nobly so, because of their, um, conviction), one of them even leaves evidence laying around in a public place, thereby destroying the chain of custody and making the evidence inadmissible against her defendant. Lucky for us, the vulnerable and innocent public, the judge is there to save silly prosecutors like this from their own stupidity and help them keep increasing the prison population; the good judge just chooses to ignore this glaring violation of the rules of evidence. Hooray for the objective factfinder who is guided only by the rule off law!

In sum, the show is basically what you'd expect from the creator of Law & Order—another pean to the people that work so hard and sacrifice so much to keep us all safe. I for one, could hardly be more thankful. *cough*

Sarcasm aside, you know I'm going to keep watching the show. The over/under on Potter has him at three months. I'd say the over/under on this show is about three weeks. If you've seen it, would you take the over or the under?

Posted 04:05 PM | Comments (6) | TrackBack | crimlaw tv land

What a week! A.k.a.: What she said!

Isn't Saturday morning grand? The start of any day is a moment of possibility—you never know what might happen that day, right? But Saturday morning is possibility times two, or maybe three, or maybe twenty, because it's the start of two days during which maybe, just maybe, you'll finally have time to do all those things that have been building up on the fringes of your to-do list for the last week. Possibility. It's a wonderful thing.

This Saturday morning is especially great because the past week was so damned packed with stress and busy.

I wasn't the only one with a week like this. But while the busyness of the week made it seem long to Kristine, all that action made the week fly by for me. And it really was a whirlwind of a week. Monday I prepared for trial, which turned into a motions hearing, which turned into a “motions denied!” and a plea. I thought that was a pretty bad day. I mean, it felt crappy, even though it was a good day in terms of all I learned.

Then there was Wednesday—yet another rough day in court. But again, I wasn't the only one — Energy Spatula summarized both our Wednesdays perfectly: Your Honor, as it turns out, I am a moron. I apologize. Deeply.

What made my Wednesday so rough was a combination of the sort of lack-of-confidence hangover from Tuesday and the fact that the client I've worked for all year, my very first client ever, refused to talk to me. That wasn't really new—he hasn't really been talking to me for about two months now, which has made representing him kind of difficult. But during that time, he was pronounced incompetent to stand trial so I just had to tell myself that he didn't like me because he didn't really understand what was going on.

On Wednesday my client was found competent and he was pretty clear about the fact that he did not want me to represent him anymore. He said he didn't want any student—he wanted a real lawyer. So, faced with a client who wouldn't talk to me and in fact accused me of actively working to keep him locked up, I moved to withdraw as his assigned counsel. I was sort of prepared for the judge to at least have a little discussion about this motion to at least test out my client's certainty that he did not want me as his counsel, but that didn't happen. Instead, without a blink the judge granted my motion, called out an attorney who was waiting for her matters to be called, and appointed her as my now former client's representative right there on the spot. Just like that, bing bang, I was minus one client.

I still don't know what to think of that. It sucked because it shook my confidence further even though I know I did everything I could for that client and there's no rational reason he would not want me to represent him. In fact, I was able to get some great results for this client previously, such as getting him released on his own recognizance after his first, second, and third charges, winning a probable cause hearing that my supervisor assumed was not winnable, and negotiating a plea offer that would have had him out of jail last November w/barely more than time served if only we'd been able to make it through the plea colloquy. So I know I didn't fail this client, but still, it sucks that he doesn't understand that.

Then there's the fact that the judge that granted the withdrawal w/out hesitation was the same judge who denied my motions so profoundly the day before, so I had to wonder whether she also questioned my competence—either based on my performance the previous day, or on the fact that I was making the motion at all. Was she disgusted w/me that I would just throw up my hands and give up on a tough client? Is that what I did?

Always the second-guessing. But it just seemed that if he felt like I was his enemy and didn't want to work with me, it would be better for him in the long run to work with someone he likes or trusts or at least doesn't actively dislike. I want what he wants—for him to be free and out of the criminal system as soon as possible. It just seemed like getting him new counsel was going to be the best way to achieve that for him.

But Wednesday wasn't finished with me yet. I also had a simple set date that turned a little sketchy. After the preliminary hearing where the judge barely found probable cause, I thought we were just going to set a date for trial. But no, that would be two easy. Instead the two attorneys for the codefendants wanted to set a status date to possibly accept plea offers, and doubtless those plea offers would include their clients making statements against my client, which means if they take pleas and I don't, my client could get screwed. Awesome. Thanks, guys. I know you've gotta do what's best for your clients, but if it's good for your clients to plea guilty to crimes the government is just not going to be able to prove then I'm a monkey's uncle. Grr.

Thursday was all about making a zillion phone calls and investigating the above case, as well as preparing for Friday in court. Friday was not that big a deal. I had two matters that should have taken about 5 minutes each, which meant I was in court from 9:00 a.m. to about 3 p.m. So yeah, pretty typical.

In all, it was an action-packed and stressful week, but as I've said before, I learned tons of good lessons and nothing really bad happened to my clients as a result of my learning experiences so it's all going to work out, I think. Still, I'm so glad it's Saturday!

p.s.: I know if you're a public defender or other trial attorney reading this you're probably thinking, “quit yer whining.” I know the day-to-day life of the full-time public defender is packed with much more of this kind of thing and I'd better get used to it. So this isn't whining; this is me getting used to it.

Posted 11:28 AM | Comments (1) | TrackBack | 3L crimlaw

Another song about the rain

Crap. It's raining. And I have to go to court again. I do not like this one bit. Snow? Fine. Rain? Not so much.

Grrr...

p.s.: The title of this post is also the title of a song. Can you name the artist? No fair using Google, cheater.

Posted 07:31 AM | Comments (3) | TrackBack | 3L

You lose, suckaaaah!

I argued a suppression motion (statements and evidence) today and at the end of it that's what the judge said to me: You lose, suckaaaah!

So let's see what we learned today:

1. You can never prepare too much for any court proceeding that requires questioning witnesses and/or making arguments. I repeat: There is no such thing as over-preparation!
2. Cross examinations are hard. When the witness doesn't say what you were hoping/expecting, you have to pick up and keep moving or you'll look really stupid. More preparation (e.g., investigation) might reduce the chance you'll get answers you don't expect or don't want. See lesson number one, above.
3. Asking leading questions without sounding hostile or petulant is an art.
4. Remember: If a judge overrules your objection, it's generally a fairly bad idea to make it again just to see if she's changed her mind in the last 30 seconds.
5. When the judge makes and sustains her own objections to your questions w/out any prompting from opposing counsel, that's probably a good sign you're seriously screwing up. It is also a sign that the prosecutor may be incompetent or asleep at the wheel, but forget about that—it will only make you feel worse when you eventually lose.
6. Judges believe cops. Get used to hearing the words, “the court credited the testimony of the police officers.”
7. Judges do not believe defendants. Get used to hearing the words, “the court did not credit the testimony of the defendant.”
8. Innis may not be as handy as it seems to defense attorneys.
9. Pulling together arguments on the fly and incorporating all of the important evidence just elicited at a hearing is crazy tough. There were at least three big things I forgot to say in my final argument, dammit. They almost certainly wouldn't have changed the outcome, but I still wish I'd said them.
10. It takes concentration and constant vigilance not to make faces at judges who insist on spending five minutes describing in painful detail why they are basically ignoring everything you've been saying for the last two hours.

So yeah, all around it was a, um, good day. I learned a lot. For a couple of hours after the hearing I just kept thinking about what I wished I could say to the judge to explain all the things she seemed to ignore or miss or not care about. But that's not possible. You get your chances at well-defined times in court, and if you forget to say something or say it poorly, too bad for you, and more importantly, too bad for your client.

In the end, although it was tough to hear how absolutely my motions were denied, my client got a pretty good sentence of all suspended time and a few months supervised probation. He was pleased to be staying out of jail so all's well that ends well, more or less.

And hey, tomorrow's another day, and in front of the same judge, too. You're jealous, aren't you?

Posted 09:03 PM | Comments (6) | TrackBack | 3L crimlaw

Good Luck, Bar Exam Babbies

I know several people who are taking a February Bar Exam this week—Tuesday (tomorrow!) and Wednesday, to be exact. If you believe in a higher power or some other force that might be able to help them, please request any and all available assistance on their behalf. I hope it works because I'll be asking them (and the rest of you) to do the same for me in July....

Posted 09:05 PM | Comments (2) | TrackBack | 3L