I am always annoyed by prosecutors who stroll into the courtroom moments before the judge takes the bench. This results in a rush of defense attorneys toward counsel table seeking to speak with the prosecutors before our cases are called. It makes our job that much more difficult. And then the judge chastises us for not having worked out more of these issues in advance.
His post was more about prosecutors being discourteous, but I am more interested in the effect on defense lawyers and some major problems with the system in general.
There was a time in my career when I took appointed cases and carried a much heavier caseload than I do these days. Back then, it was common for me to have several cases set for the same time in Maricopa County Superior Court in front of different judges. It was unavoidable because courts generally just don’t care about defense attorneys’ schedules, and one huge stressor in my job at that point was figuring out how best to approach making every hearing in morning while minimizing the number of people who hate me and blame me for all their problems. A few people hating me and blaming me for all their problems was fine because I knew deep down I was doing my best, but too many and I found myself beaten-down and sleep-deprived than normal, tossing and turning because I gave a shit and no one realized I poured my heart in soul into each and every case at the expense of my own health and happiness. It was terrible.
Let’s say I had an 8:00 a.m. calendar call at the master calendar, the courtroom with that magic wheel of fortune that decides what new-to-the-case-judge presides over your client’s life-or-death trial set to start that morning. I’d also have an 8:00 a.m. pretrial in front of a judge who starts his calendar earlier than everyone else. Add to that two 8:15 a.m. initial pretrial conferences in front of commissioners, one in a case where I’d asked for a new plea a half dozen times but hadn’t gotten a response and one where my client is alleged to have violated his conditions of release and might be taken into custody, and one 8:45 a.m. change of plea for a Mexican national who saved every cent he earned for years to get to the USA and work his ass off to make a better life for himself but got busted on the car ride to Phoenix with all the other vehicle’s occupants by sheriff’s deputies and charged with a felony offense for supposedly smuggling himself when in reality he was just going to a drop house where the coyotes were going to torture him and extort a little extra money from his family before killing him and throwing him in a ditch or reporting him to authorities in exchange for a little lenience in their own cases.
Knowing my cases, my clients, the prosecutors, the system, and the judges like the back of my hand and having experienced this sort of contract attorney Groundhog Day already, I’d plan my morning as best I could. The 8:00 a.m. calendar call was always so full we wouldn’t get a judge unless I showed up first; I’d have to go straight there to avoid the worst case scenario with the most severe consequences. One 8:15 a.m. initial pretrial conference should be quick because the commissioner was usually on time and the release condition violation was easily explainable plus the case involved an interpreter, which would give it priority. The other initial pretrial conference should be quick because it was just going to be a simple continuance due to the prosecutor’s failure to extend a plea offer. I’d already met with the Mexican national alleged to have smuggled himself and gone over the plea he’d likely be getting, which would have him back in Mexico by nighttime though the prosecutor had yet to provide me with anything. That would be a good place to go fourth. Finally, I’d go to the 8:00 a.m. calendar last because the prosecutor had never shown up to anything before 10:30 a.m. in her life. I’d go to bed the night before knowing I’d done the best to plan any human being could given the circumstances, but I would never get but a few winks of sleep because I’d fret endlessly about the people whose lives I was supposed to protect and knew I would bear the brunt of everyone else’s bad feelings whether it was my fault or not.
Up at the crack of dawn, I’d prepare and re-prepare everything I could for the day, go to court with time to spare, and wait outside of the master calendar for someone to open the door. Being the first one there, I’d immediately check in with the bailiff. No prosecutor, unfortunately. I’d be told to wait. I’d actually be instructed not to leave no matter what, in fact, and I’d sit there through one hearing after another with no sign of the prosecutor anywhere. My phone calls would go to a voice mailbox that was full, and my emails would get no response. When the prosecutor would show up at 9:00 a.m., there’d be no judges left. It’d get set for the another day that looked just like the one I was having except for the fact I’d have another trial I wanted to start. On top of that, the judge would admonish me about being on time and respond to the brief record I’d make about me being there early and the prosecutor being an hour late with a lecture about how I shouldn’t shift blame.
After rushing to the first 8:15 a.m. initial pretrial conference I’d decided to do, I’d see that the interpreter wasn’t there yet and neither was the prosecutor. There would be, however, a memo from pretrial services claiming my client who lived in a homeless shelter and had no driver’s license and no money for mass transit had called ten times apologizing for missing a meeting but hadn’t shown up in person. The bailiff again would instruct me not to leave. I’d ask for her to send emails to the other judges, which she’d forget to do. I’d see spider solitaire up on her computer, so she obviously had better things to do. I’d sit in the well getting the evil eye from the judge and the client simultaneously. When the interpreter would finally arrive with no prosecutor anywhere to be seen and no coverage notes anywhere, I’d call the case despite an even more evil eye from the coverage prosecutor. The county attorney standing in would make a record about my lack of professionalism and tardiness getting there myself, and she’d argue for my client to be taken into custody. The client would stay out, but not without a lecture from the commissioner about my attitude and unwillingness to wait for assigned county attorneys, who are very busy, apparently.
By the time I’d get to my second initial pretrial conference, mine would be the last case left on the calendar and there’d be notes in the file with a plea offer that was far worse than what I’d requested and actually worse than what the first offer was. It would have all kinds of errors on it and an expiration date at the end of the hearing too. The assigned prosecutor wouldn’t respond to emails, texts, or calls from the coverage prosecutor. I’d review it with my client, who’d have no interest in it and rightfully shouldn’t have had any interest in it, and I’d leave my cell phone number with the bailiff, who’d graciously let me leave to finish my other hearings.
I’d rush to the 8:45 a.m. change of plea for that immigrant who should’ve been given a job instead of a criminal conviction and deportation, and to my surprise, I’d be the first defense attorney there despite the fact I was about two hours late. I’d pull the plea from coverage counsel and see it was exactly the same as I’d expected not just for my client but for every one of the twenty poor guys on the chain. Knowing the defendants might rot in jail for weeks if they didn’t take the plea that day, I’d snag an interpreter and go over the offer with all of them, providing them with their pleas as I told them all they really needed to go over it with their own lawyers. I’d go to make copies in the faraway chambers of the one judge I knew had a working copier that slimy contract defense lawyers like me were allowed to use.
As I was making copies, I’d get angry messages from the court I’d left after getting the ridiculous plea, the court that was hearing the client’s case for whom I was making copies, and the court where the judge holds 8:00 a.m. pretrials. The first one would be pissed I left because they started a trial right after their morning calendar, the second one would be pissed I wasn’t done with copies even though they wouldn’t let me use any of the nearby copy machines, and the third would be upset neither I nor the prosecutor had appeared yet. I’d rush back with copies and be admonished for taking so long despite the fact only one other defense attorney had even bothered to appear and I hadn’t gotten permission from the other eighteen to plead out the clients they’d been paid $846.00 for representing but hadn’t ever met in custody. I’d leave again.
Back at the bad-plea court, the coverage prosecutor would tell me there would be no more offers and no more discussion. My client did it, right? He should take the bad offer made by a 24-year-old prosecutor with half an hour of experience and without any communication with me or knowledge about the case. That assigned prosecutor would demand the court advise my client of his exposure at trial, but would provide no notes. The court would order me to stay while the coverage prosecutor of similar age and experience to the assigned one figured it out; I couldn’t be trusted to do it myself, of course, despite the fact I was the only person who knew the case. Burning another half hour, I’d leave with an angry client who’d act like he had no clue before how much he facing and thought his offer was forever gone.
As I’d run into the 8:00 a.m. hearing courtroom three hours late, I’d see nothing but angry faces. I’d approach my client on the chain, and he’d all but spit in my face. “Why can’t you show up on time?” “You don’t care about me.” “You aren’t fighting for me.” “If I’d hired [puppy mill law firm with billboards] I’d be home with my family.” “I’m filing a bar complaint.” I’d call the case, and the coverage prosecutor would make a record about my incompetence. It was 11:00 a.m. and I was supposed to be there at 8:00 a.m. The prosecutor was there ten minutes ago and left five minutes ago. I am a horrible, irresponsible lawyer for not being there waiting when the prosecutor showed up. The judge would ignore his invective and reset it, thankfully. On the way out, I’d be cornered by the client’s family. “Why can’t you show up on time?” “You don’t care about my [son/brother/cousin].” “You aren’t fighting for him.” “If we’d hired [puppy mill law firm with billboards] he’d be home with my family.” “We’re filing a bar complaint.”
Rushing back to my last hearing, I’d get stuck waiting in a bay of six elevators, only two of which worked and only one of which wasn’t being operated by what must have been a packed house of stoners who loved watching all of the floor lights illuminate and go away. Meanwhile, judges and staff would comfortably float from floor to floor in their own special elevators, largely oblivious to what everyone else endured. I’d make it to the change of plea hearing in time to see yet more angry faces. The judge would’ve heard the pleas from everyone being represented all at once by another attorney who lied to the court about having permission to plead everyone in order to get out early. No one would’ve noticed mine was the only plea signed by the right people. No one would’ve noticed mine was the only client who’d gotten a visit from his lawyer. I’d get a lecture about punctuality and responsibility. I’d leave at noon having accomplished what in the end amounted to making more work for some other time and at best one resolved case where I might be denied payment for failing to attend the hearing I tried my best to make and where I was the only participant who actually tried to do it right.
And so it goes for the contract criminal defense lawyer. The public defenders and legal defenders and legal advocates here are often equally abused and overworked but have respectable bosses who can diffuse this stuff. The prosecutors work for an office with a history of special-actioning and winning and even criminally charging judges who mess with them. The poor little contract attorneys, I’ve been told time and time again, are a bunch of no good leaches sucking money out of the system. At least one judge has even testified that they per se commit ineffective assistance of counsel simply because they take appointed cases through Maricopa County’s Office of Public Defense Services. Can you see why I left the game?
When I read Jamison Koehler’s post, the part about defense attorneys getting the blame for things prosecutors do really struck a nerve because I’ve experienced it firsthand on a grand scale, and not just when it’s things prosecutors do. I’ve seen defense attorneys continually used and abused by a system that couldn’t function without them but that increasingly treats them with utter contempt. On an even grander scale, I’ve seen what is likely to happen when the federal system keeps cutting public defense budgets while increasing the government’s budget and relying on CJA panel lawyers for everything. They can work their asses off, just like I did and just like countless other contract lawyers everywhere do, but they’re much easier to blame without consequences than their W-2 counterparts with prominent bosses.
The life of a private public defender sucks because it’s always our fault and we don’t have as much of a unified voice. I respect people like Mark Bennett who would rather resign than be the willing scapegoat in the scam; that’s more or less what I did here in Maricopa County a few years ago, after all. I also respect immensely the people who do it day after day and year after year with aplomb, but it shouldn’t be that way, though. The life of a private public defender, or any defender really, in part sucks because we let it suck by continuing to participate.
Filed under: Courts, Government Rants, Judges, Practice in General, Prosecutors, public defenders · Tags: CJA, contract, court, federal, federal sequester, felony, FPD, judges, legal advocate, legal defender, maricopa, opds, plea, prosecutor, public defender, smuggling, superior court