It may seem like I do nothing but complain, but there are times when things do go according to plan. Sometimes the system gets it right. Rarer still, sometimes the system gets it wrong but corrects the mistake with surprising efficiency. That happened in one of my cases on Wednesday.
The crime was supposedly possession of marijuana, and my client is a first-time offender. The state has a serious uphill battle in the case, as the stop is questionable, the search is questionable, and the facts are about as good as they get for trial purposes. He may lose, as the odds never really exceed fifty-fifty when you’re playing with a jury, but he has no real risk at trial; he’s ineligible for jail even if he loses.
Unfortunately, my client missed two hearings in a row. He missed the first because he had a severe allergic reaction to medication. When the commissioner showed a rare hint of compassion and reset it for the next day instead of issuing a warrant, my client missed the second because he couldn’t get a ride on such short notice. With Phoenix’s urban sprawl and lack of good mass transit, transportation is often an issue. Judges, of course, don’t care. It isn’t like they’ve ever had to take a bus to court from where many of my clients live.
My client, who couldn’t get jail losing at trial, was picked up right away and held in custody on a very small bond he couldn’t possibly afford. His initial appearance on the warrant was in front of a commissioner I’ve mentioned before, and she held true to form. She wouldn’t even consider new release conditions and insisted the assigned commissioner address the issue later.
The assigned commissioner was another person I’ve mentioned before, someone isn’t exactly a defendant’s best friend. That poor client sure does have some bad luck. Her assistant wouldn’t set a release hearing in advance. Instead, she suggested I file a motion to modify. Courts assume defense lawyers are lazy, so they often request motions knowing the lawyers won’t follow through. It has to work on somebody or they wouldn’t do it. I suspect that’s what she was doing. It definitely doesn’t work on me, however, and I got the motion filed right away. I did everything I could to stress its urgency.
I expected my motion would go unnoticed. I expected the assistant would screen my calls and ignore my messages asking for the earliest possible hearing date. I expected the prosecutor would be unavailable, fail to respond, and further stall the proceedings. I prepared for spending hours on the phone just trying to get an opportunity to be heard by someone, and I anticipated dealing with attempts by the court to ignore my motion without considering my arguments at all. Courts love to claim there’s no change in circumstances or that the state needs ten days to respond in order to put off dealing with the merits of motions to modify release conditions. I fully expected to encounter every conceivable snag in this case. I was certain that making sure my client wouldn’t spend the holidays in jail was going to be one hell of a battle.
My expectations turned out to be wrong, and I couldn’t be happier about it. The very next morning I got a call from the initial appearance commissioner’s clerk asking how soon I could be in court. She was in a remarkably perky mood. Another commissioner was covering the morning docket and had noticed my motion. He wanted to get me and the prosecutor there right away to issue a ruling, so I rushed to court. To my surprise, the prosecutor was actually there. She’d even written a response to my motion and agreed to release. The commissioner called the case, granted my motion, and ordered that my client be released. It happened so quickly it felt surreal. My client was out within hours.
It took a few moments of calm on the drive home for me to really think about how remarkable that situation was. The motion actually made it in front of a judicial officer within 24 hours. That’s fairly unusual, but not as unusual as the fact that judicial officer happened to be someone who was sympathetic to my arguments. Even more unusual is the fact he happened to have the time to read it before starting the morning docket. His clerk made the calls promptly, and perhaps most surprisingly, the prosecutor acted quickly too. Many prosecutors would see my client being taken into custody as the perfect opportunity to try to force a plea out of him by opposing release absent some kind of agreement. Instead, she stipulated knowing she’ll now be dealing with multiple motions and a jury trial before spring.
The system doesn’t always work like that. In fact, it almost never works like that. I hope the prosecutor doesn’t get in trouble for stipulating to release. She may; I know it’s happened before to her colleagues. I hope the commissioner doesn’t get in trouble for hearing it so quickly and ruling in my favor. He may too; I hear he’s had complaints from his colleagues for doing similar things. Every time someone does something to help a defendant, it seems like they’re setting themselves up for problems later on.
I shouldn’t keep focusing on the negative. Instead, I should focus on the fact my client is out of custody for the holidays. He’s lucky to have gotten a little bit of fairness out of a generally unfair system. Our system don’t always suck, and I should at least be a little happy about that.