We're Gonna Need a Motion for That

Of all the people in the criminal justice system, aside from the actual defendants, private defense lawyers are usually in the worst position to get anything done. We don’t get full access to court information. We can’t access the county or city email directories. We don’t have offices in the same building as the judges. In most courts, we can’t even bypass security. We stand in line with our clients and watch the prosecutors walk to the front of the line, swipe their badges, and glide on through.

Despite our lack of access and resources, courts are more than happy to shift the burden of completing various tasks to us every opportunity they get. In some courts, we’re obligated to file transport orders for clients held in custody in other jurisdictions. We have to file a motion requesting transport and an accompanying order. We have to provide an extra copy of the order and a self-addressed, stamped envelope if we want confirmation our motion was granted. It takes us a motion and two copies, four blank orders, three stamps, and three envelopes to get one client to court for one hearing. I’ve seen court staff accomplish it with a phone call. At most, it takes a single printed page and a fax machine for the court to make it happen.

Vacating hearings is often the same. I’ve shown up for two hearings in the past month only to find out the prosecutor called in sick and the court vacated the hearing based solely on a phone call. They never bothered even trying to tell me. When I want to vacate a hearing, I usually have to either file a motion and hope it gets granted, or I have to show up and request in person that the hearing I’m attending not happen. Clients pretty much always have to show up unless the motion is granted in advance.

To find out if a motion to vacate or a motion to continue has been granted, because I lack full access to court information, I’m often stuck having to just call the court and keep asking. In some courts, that means I have to call the main number and wait on hold for quite some time. One jurisdiction used to have a number for the prosecutor’s office that gave defense lawyers quick access to a paralegal who did have full court access. It was convenient, but too many defense lawyers were calling the prosecutor’s office to ask if their motions were granted. The prosecutor’s office decided not to tell defense lawyers anymore, so they now waste five minutes on each call arguing with defense lawyers about why they can’t give them a piece of information that would take ten seconds to look up and communicate. When the lawyers give up, they call the main court number, which is more backed up than ever because of the increased volume of calls, likely comprised mostly of irritated defense attorneys.

Another jurisdiction gives judges almost no ability to schedule anything. The two main criminal judges don’t hear change of plea hearings, so you can only set a review of change of plea in their court. After doing that, you then have to walk down to a judge pro tem’s judicial assistant and find out if and when they can hear the plea. You get a date that works for you and the prosecutor, and then instead of just having the court issue a minute entry setting it, you have to file a notice of hearing. Plenty of defense lawyers don’t have badge access to the area where the judicial assistants are, so they either have to sneak back through a courtroom, ignoring the signs that say you’ll be escorted out if you don’t display your badge, or they have to call the judicial assistants, who can sometimes be rather difficult to reach.

When it comes to making defense lawyers do the heavy lifting, the biggest culprit is tribal courts. I suspect the judges often have no clue what they’re supposed to do, so they demand the defense file a motion and order. The worst one I’ve encountered was about three years ago in a court with no rule of criminal procedure addressing competency.

My client was so obviously crazy that there was absolutely no way he could even try to assist in his own defense. He wrote me letters in code, sang songs to himself in court, and thought I was appointed to obtain custody of his alien baby. I asked for him to be evaluated, and the court looked confused. I guess the issue had never come up in his dozen previous cases.

The judge demanded I filed a written motion and a proposed order, which I did. At the next hearing, the judge informed me that none of the things I requested were possible. There was either no funding or no one who could do it. I asked the judge what she could do, and she told to call around and find out. The judge literally ordered me to call her own court staff to find out what she was capable of doing. On top of that, she wanted me to provide a memo to the court detailing the court’s own powers and then to submit another motion and order based on my findings.

Knowing it was the only way my client was going to get any kind of mental health evaluation, I jumped through every hoop. Sometimes, I could hear the judge talking in the background as I spoke with her court staff. Every call I had to make was long distance.

After complying with everything, I showed up to court confident that my client would get the screening he needed. The judge, however, had other plans. She read my memo as she sat on the bench, as it was apparently not important enough to read in advance, then she shuffled around my motion and order. She looked at me and politely told me my motion was denied. She didn’t think an evaluation was necessary.

Luckily, the prosecutor, the only other person in the room with a bar number, realized how terribly wrong the court’s ruling was and promptly dismissed the case. Of course, the court set up one last hurdle by requesting I file a written response to the prosecution motion to dismiss with prejudice even though the prosecutor’s motion accurately avowed that I did not oppose it.

When the defense lawyers I know get together for a little career therapy during happy hour, I’m always impressed with the new, creative ways courts make work for them. Most of you reading this are probably defense lawyers, so if you have them, feel free to share in the comments. I’d love to hear them.