I'll admit it. I talk to myself.
More to the point, I talk, scream, and jump up and down at inanimate objects that bring me bad news.
Like this morning.
I represent this 18 year old kid. Sweet guy. Graduated from high school this past spring, doesn't cause any trouble, listens to his mom, and keeps his ears clean.
On a balmy spring evening last March, sweet kid is walking with his sweet kid friends, minding their own business. Officer Friendly sees these kids minding their own business and he thinks he needs to shake things up a bit. Must have been a particularly slow night in the Republic of Portland. After Officer Friendly engages my poor client in an illegal stop, my kid admits he has "quite a bit" of marijuana in his backpack.
A couple of notes for those of you who don't practice law in Oregon...
1. Our search and seizure law is good and it is getting better all the time. Our Supreme Court doesn't care what SCOTUS says. We're in Oregon, damn it and we do things our own way. Pioneering spirit and all that. Hell, we've got a whole wagon trail named after us!
2. This is Oregon. More importantly, this is Portland. I think I might be the only person in Portland who isn't getting baked on a nightly basis. OK, that's maybe an exaggeration. Point is, we don't care that much about pot in this city!
I've had this case since I took over another attorney's case load in May. In August I filed a kick-ass motion to suppress evidence. No reasonable suspicion to stop my client. No reason to demand his ID. Unlawfully extended stop. All the good stuff.
The DDA kept setting the case over. He's going to file a response to my motion. Yeah, right. In all my time as a PD in this city, I have never had a written response to anything from this DA's office.
This morning, I got my response via e-mail. "Dear Miss Conduct: Plead out your client now or we'll go back to the grand jury and we'll reindict him for much, much worse. Love, DDA."
I screamed at my computer.
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6 comments:
How well do you know the DA? Please tell me there's something you can do to convince said DA to get sane for a few minutes.
I know the DA quite well. As a matter of fact, we have a very nice working relationship. Usually.
I honestly think that he's trying to use the power of the state to force a plea so he won't have to do a bunch of work and then loose anyway. He really, really doesn't want to litigate this case and his office policy is such that to dismiss the case would be to kiss his job good-bye.
I have some sympathy for the DA here, but he's not looking at being labeled a felon for the rest of his life like my poor, clean eared client.
If you think you have a good motion, then dig your heels in and get stubborn. I had one like that, which I called "The 'Terry' stop from hell, where my client was picked up 2 blocks away from the site of a recont burglary, primarily because the assisting officer recognized him as a parolee. They claimed some bogus similarity between a footprint found inside the burglarized business on a piece of paper, and my client's shoes. My client refused to talk to the cops other than to protest his innocence, and they held him for 6 hours while they "investigated further" before releasing him to go home. Without his shoes. In the middle of winter. Later, they searched his residence and found a leather jacket that they said "looked similar to" one the victim said had been taken. Client claimed he'd had that jacket for 3 years.
Tough Luck. Warrant issued, and Client is in jail.
After the motion was set, it was continued 3 times. Each time the offer got better. first it was 5 years DOC. Then 3 yrs. Finally, on the day the motion was to be heard, it was probation and time served on a lesser charge. all of these my client refused. When I told the DA "Let's rock and roll", he called the case and dismissed it. Turned out that that morning, he'd had the investigating officer bring the alleged paper with the footprint, and it was little more than a partial smudge. And the complainant had looked at the leather jacket and could not say more than "It looks like the one I had."
In other words, they had NO evidence my client was involved. Did that stop Mr. DA from indicting and even trying for a plea to *something* at zero hour? Not hardly.
On another case I actually tried, the DA told me "your client had better take this plea (3 years for an Aggravated Battery with a Knife), or I'm taking it back to the Grand Jury and indicting on Attempt Murder. I skimmed through the facts and told him "Go Ahead." The victim's blood tests from the hospital were positive for everything but Meth. My client had been bitten several times by her pit bull, and during the investigation (documented in the police reports) the dog had tried to bite the cop, entirely unprovoked. My client's tale was that they were smoking crack together, the dog went after him, and he grabbed a knife from the table and began to swing wildly at anything, as the dog clamped his teeth into the client's buttock and hung on. He never knew the victim had been hit, just the dog let go and he got the hell out of there.
Jury Verdict? Not Guilty. In 15 minutes.
Th point here being, sometimes you have to call their bluff. Best you do it when you actually may have an argument.
The Bardd
http://cori1047.wordpress.com/
I agree with you, Bardd.
Here's the problem with my case. Sweet kid is absolutely guilty as charged. The only reason anyone knows about his activity is through illegal police activity. Loose the motion, loose the trial (but not without a fight).
Client has no criminal history and is currently charged with an expungeable crime. Even if we loose, he waits three years and I can wipe his record clean.
Client is also guilty, by the letter of the law (if maybe not the intent) of the greater crime. This crime is non-expungeable. Class B felony on his record for ever and ever. You know the difficulties our clients have as convicted felons getting housing, jobs, etc (don't even get me started).
A great motion can be derailed by a bad judge, and in my jurisdiction, I won't know what judge will hear my motion until the day before trial. Yeah. Really.
Client needs to know of the increased risk involved in persuing our motion. The call will be his, of course.
My Dear God(dess)! What kind of court system leaves you guessing about the identity of the trial judge until the day of trial? That cuts a major factor out of your ability to advise your client about the chances of a favorable outcome.
Do you have the right to an automatic substitute once a judge is assigned? Or do you have to show "actual prejudice" against your guy?
The Bardd
Yeah, indeed!
This is the same kind of system that allows for a 10 to 2 jury verdict in felony trials.
Seriously.
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