Luckily, the first rule doesn’t apply to state grand juries generally, just to specific grand juries. I can’t tell you anything about any of the poor folks currently being judged in their absence by a group of randomly selected residents in secret proceedings led by an agent of the state, but I can at least tell you a little something about the process in general.

As you can probably guess from the first rule, grand jury proceedings are held in secret. In Arizona, it’s a crime to disclose the fact that an indictment has been found or filed before the accused person is in custody or has been served with a summons. It’s also a crime to disclose the nature or substance of any grand jury testimony or any decision, result or other matter attending a grand jury proceeding. Arizona isn’t alone, and it may not even be especially secretive.

Here, everyone tiptoes around the grand jury. Its secrecy leads grown-up lawyers to allude to a “special place” where cases might be. We all know the state is seeking an indictment, but we don’t dare divulge any of the nasty details.

Defense lawyers tell their clients the state is doing something they can’t talk about but that we’ll write a letter explaining everything to the indictment-hungry prosecutor and hope he reads it to some mysterious people in secret. The only solace is that we can tell our clients we’ll get more information when they’re in jail or they receive a summons, but we don’t know which one it’ll be and would be committing a crime if we told them anyway. Comforting, huh?

The whole things strikes me as profoundly unfair. In one of my first appointed cases, I was advisory counsel for an elderly gentleman who filed a number of pro se motions arguing the indictment, which the state obtained against him in secret grand jury proceedings, was fundamentally unfair for that reason and therefore violated due process. The judge and prosecutor were more amused than anything, snickering about how silly he must be to not realize that all grand jury proceedings occur in secret.

I thought my client was onto something. It is fundamentally unfair that the opposing party, the party with all the power in the world and far better access to the courts and everything else in the criminal justice system, gets to go behind a defendant’s back and rubber-stamp the charges.

And what a rubber stamp it is! You simply can’t challenge the sufficiency of the evidence. Even if they indict your client without any evidence on a major element of the charges, you can’t say the presentation was insufficient. You have to frame it under the theory that your client was denied a substantial procedural right.

I remember at one point learning about the history of grand juries in this country. As I understand it, in the beginning, anyone could bring a case before them. It certainly wasn’t some secret group to whom only the state had access. It was a group of ordinary people tasked with deciding if there was enough evidence for the complaining party to proceed with a case. It seems like a great idea, almost democracy at its best. If every case started with a defense lawyer helping to present the full picture to a group of impartial citizens, there’d be a lot fewer cases.

As it currently works, the grand jury is little more an effective way to keep important information away from the defense during the early stages of a case. Grand juries indict almost every person almost every time. People tell me there are instances where they’ve indicted without having been given a single shred of evidence on substantive elements of the charges or without having been told the date and place where it occurred or even the defendant’s name. Is it any surprise that people who only see prosecutors seeking indictments and cops testifying about why to indict tend to do what the prosecutors and cops want them to do?

At some point, grand juries may have served as a check on the state’s ability to bring charges. Now, it’s one of their greatest weapons. It’s a little extra confirmation for my belief that we aren’t really a free, open society at all. It’s a symbol of the state’s incredible power and its ability to turn anything and everything it touches into a weapon against its citizens, even those things intended to protect them.

It’s fitting how it’s evolved and that it’s done in secret, as the first rule of ever-increasing government power and abuse is that you don’t talk about ever-increasing government power and abuse.

If you’re charged with regular DUI and your blood alcohol falls in the uppermost part of the range, they offer you a plea to 3 days of jail. You’d get 1 day losing at trial. When they aren’t anti-negotiating, they typically offer you the same thing you’d get at trial. Across the board, it’s one the most wasteful, absurd things I see in any Arizona court. When the court gives you notice of what they call a “trial readiness conference,” it says trial will be set within 45 days. They’re setting trials in late February and March right now. I doubt anyone wonders why the city’s courts are so clogged.

I spent most of the afternoon last Thursday in a motion hearing there. It’s a no-real-plea case, and I filed three motions to suppress. The prosecutor was irritated with me, almost as if he didn’t realize that it was his own office’s fault for not making a meaningful offer. However, his irritation was nothing compared to the officer’s. That poor officer couldn’t have made it clearer that he didn’t want to be there, and I don’t know who irritated him more, me or the prosecutor.

I honestly felt bad for the cop. He could be out patrolling the streets. He could also be getting some shuteye or mowing the lawn or spending some time with family. Instead, he’s spending an afternoon in a courtroom. He’ll spend more time there when the next round of motions comes along. He’ll devote yet more time in the future to depositions and complying with new discovery requests. He’ll kill a whole day or two in court when trial rolls around.

I felt even worse for the poor people of Scottsdale. That cop won’t be doing anything useful for them during all those hours he ends up spending on the case. It’s all because someone in the prosecutor’s office thought it would be a good idea to institute a ridiculously wasteful tough-on-crime policy that’s more tough-on-logic than anything else. If the zealots at MADD are right and enforcement is the key to stopping drunk-driving, I wouldn’t be surprised if Scottsdale soon becomes the DUI capital of the world. All of their DUI cops are going to be sitting in court because mayhem on the streets is apparently not too high a price to pay to avoid shaving off a little time from DUI defendants’ sentences.

It should go without saying that I don’t feel bad enough about any of this to do one iota less of work on any of my cases there. The constitution sets a high bar if we insist on it. All the government waste in the world is justified in my mind if that’s what it takes for one defendant to get his fair shake. Of course, my interests are my clients’ interests. The people who create wasteful policies have different responsibilities. They should be thinking about justice. They should be thinking about the broader consequences of their actions.

The objective of the representation in a case with no plea is still to do the best I can for my client. I have to make the system do its job, and the wheels of justice turn slowly. My clients and I win little by little with each passing moment the state has to devote to the case. Every second we spend means that some issue is being litigated and preserved. Holding the state to its burden is time-consuming. It should be. The questions the prosecutor finds objectionable and the issues that make the prosecutor roll his eyes are each little victories simply by virtue of the fact we are arguing them. The state never seems to get that. They never ask themselves if a Pyrrhic victory is really a victory at all if the person they’re fighting doesn’t suffer anything because of the loss.

There are plenty of bright people working at the City of Scottsdale. They have some great prosecutors, but sadly, they don’t seem to be the one crafting the policies. Whoever is in charge doesn’t have any clue what they’re doing, and the end result is an epic disaster where wasting resources and keeping police from policing are the norm. If more residents knew how their tax dollars were being wasted to make them all a little less safe, there’d probably be an occupy movement at the city attorney already. Maybe people will wake up sooner or later. Better yet, maybe the city will rethink its policies.

I once asked him in chambers why he does it that way, and he said it was because he thought the parties should be bright enough to know what they can and can’t ask. His position seemed to be that it should be like asking questions of witnesses during trial; lawyers don’t have to submit every single question they intend to ask each witness in advance. They should know what is and isn’t okay.

My first thought was that he’d failed to realize that, although the parties don’t submit every question they intend to ask the witnesses, occasionally, a motion in limine is a good idea. I’d love to submit this proposed voir dire question and see if he let me ask it rather than rule in advance:

How many of you would be more inclined to find my client not guilty if you knew he was facing a life sentence and that you’d have to endure a really irritating Blakely trial if you convicted him?

Maybe that’s an ethics violation. Hmm. Gotta think about that one. Might be worth it for the look on his face (and the mistrial). Kidding, of course.

Anyway, his reasoning about why his method didn’t cause problems was that a lawyer who asked improper questions would draw a lot of objections that would be sustained and end up “looking foolish.” Aside from presuming that prosecutors are competent and know when to object, honestly a pretty good presumption in his jurisdiction given the overall quality of county attorney there, I think the bigger problem is that he assumes a jury would hold sustained objections against the party asking the question.

Prosecutors aren’t always very likable. Judges aren’t always so likable either. I sometimes do a pretty good job of convincing jurors that my client and I are the two people in the room with whom they have the most in common. It’s almost always true. I don’t see empanelled a lot of people who are among the lucky 1% I keep hearing about. They’re usually good, hard-working, ordinary citizens who got summonses. They distrust the government but vote to let it control either the bedroom or the boardroom because they think they have to choose Bud or Miller. They never think about how a glass of ice water might be a little healthier, but in the microcosm of the courtroom, things are different.

If I’m trying to talk to them, a prosecutor keeps standing up and arguing with me, and a judge keeps telling me to shut up, I’m not so sure I’m the one who’s going to end up looking foolish. It may end up looking a lot like a cover-up of some kind.

I’m not asking them for their opinions, not their social security numbers. I want to know them, and I care about their thoughts and feelings. They try to talk. They’re shut up and told to listen, listen, listen. They hear lawyers and an ex-lawyer carry on for days. I want them the share, share, share. Putting myself on their side and getting shot down over and over again could be the best thing that ever happened to my client.

It’s an interesting situation. If I were more adventurous, I might submit a novel’s worth of proposed voir dire questions. I might include some clearly objectionable ones. I might start to ask them and draw objections that’ll be sustained. Maybe they’ll start with things like, “the judge and the prosecutor don’t want you to know that…” Good idea? Oh well, probably not.

On a lesser scale, though, in a case where my theme melds well with the state covering up what really happened, getting a series of sustained objections when I’m clearly just trying to start a conversation might trump any evidence I end up presenting after the jury’s sworn. I haven’t had a chance to try it, but it’s certainly something worth exploring. Within reason and the rules of ethics, of course.

The funny thing is that the judge’s policy, as strange as it might seem, has the effect of enabling me to know a jury far better than I would otherwise know. I get to talk, but more importantly, I get to listen. I’m okay risking looking foolish if it means I’m at least given an opportunity to ask questions I wouldn’t otherwise be able to ask. Sadly, that’s more than I have in most courts.

The judge’s demeanor tells me he might relish the idea of making me look foolish, but given his experience and the outcomes I’ve seen in his courtroom, I almost wonder if he’s doing it to help me, not embarrass me.

Nowhere is it worse than with sex crimes. We’ve criminalized everything, and we’ve ratcheted up the punishments. The system now hands out life sentences like it’s giving candy to trick-or-treaters on Halloween. The luckiest defendants get probation, but it may be debatable whether they’re luckier at all. The government pries into and controls every aspect of their lives. They take lie detector tests about their most intimate details. They go to therapy and group meetings where they’re made to feel like slime. They’re kept away from minors, even their own children, and they’re told where to live, with whom to associate, and what technologies they can and can’t use. Many are forced to spend their whole lives reporting to someone. So the public can know about the miserable life they’ve been ordered to lead, we make them register too.

With regard to registration, I’m almost a little proud of my state. In Arizona, we’ve only made sex offender registration mandatory for certain offenses. For other offenses, it’s up to the court. I say I’m “almost” a little proud, however, because registration is only permissive in theory. In practice, courts begin with the presumption everyone should have to register. On occasion, they even say so. Better safe than sorry, right? Judges worry defendants might do something bad to someone if they don’t have the added stigma of publicly humiliation. To prevent theoretical future harm to presently unknown victims, courts do very real harm to the poor defendants standing in front of them.

People can find themselves standing before a judge and begging not to have to register for all kinds of things. Judges have discretion to order registration for defendants who masquerade as a minor in an adult film, for adult business violations that amount to little more than zoning, for strip club owners who don’t adequately keep minors out, for people who offend others with their sex acts, for guys who take a leak by the side of the road, and for adultery. That’s just the tip of the iceberg. An Arizona court’s authority to order registration is actually broader than you’d probably ever imagine because a defendant can be ordered to register for any crime committed with sexual motivation. Drive drunk to get laid? Steal a Hustler from a gas station? You may have something else to worry about. After you plead guilty, the government may go tell your friends and family and neighbors you’re a convicted sex offender.

No matter how absurd the charges may seem, what judge wants to risk it? Sexual motivation may be a broad concept, but it still means the crime somehow involved sex. Sex is scary. What if the defendant is really bad deep down and just got caught doing something not so bad? Being safe rather than sorry means we have to ruin lives. You can’t make an omelette without breaking some eggs. Plenty of good eggs get broken in our quest for security. We can pretend we only ruin bad guys’ lives, but that’s not the way it works. People know that deep down. They just don’t care.

The problem is at the root of our culture. In fact, it’s the foundation of most people’s outlook on the world. We don’t care about freedom or virtue. We care about quality of life, and we want to preserve it. We’ve developed the erroneous belief that the power of the state isn’t the biggest threat to our well-being, but rather the source of it. We are capable of holding that belief because we’ve been so stable for so long. It’s also because the bad things the government does happen to people who seem different from us. In criminal law, that means we pretend the government’s evil deeds are only focused on people who’ve done something wrong. That way we don’t feel bad for them.

All of this keeps getting closer to home for ordinary Americans. The government expanded what’s illegal little by little, then lots by lots. We aren’t all officially criminals yet, of course, but we will be soon at this pace. Even when we get there, people may still be thinking better safe than sorry because we won’t be catching everyone. By the time the government creep has crept over all of us, the punishments will be so harsh we couldn’t fight it if we wanted. We won’t see the error of our pathological thirst for safety until the government is so big and bad it’s undeniable to even the dumbest among us that the government has always been the real threat to our safety. Until then, not being sorry is here to stay.

Although there’s plenty of lip service given to the contrary, with one defendant after another, courts start with the assumption they’re going to impose registration. Rather than start with the idea that a person should be left alone unless there’s good reason to think the public might need registration to be protected from him, they start with a mindset that somehow justifies the public humiliation of other human beings as a default because of a vague fear they might regret something sometime in the future. It’s a symptom of a diseased worldview. It’s all about thinking we’re better off safe than sorry.

We may well end up a nation of single mothers by the time people figure out there’s something wrong. I should look on the bright side, though. Fathers won’t be able to see their kids because the terms of their sex offender probation won’t allow it, but luckily, kids can keep up with their dads online through the sex offender registries.

As far as the art of persuasion goes, it’s not bad advice. A shotgun-style approach is rarely the best way to approach trial advocacy. It dilutes the best points. It’s hiding a needle in a haystack for seekers who aren’t terribly inclined to search very hard and who don’t know they’re looking for a needle in the first place. It isn’t necessarily the best way to approach appellate advocacy either.

The problem is that the court’s good advice isn’t always so good. Like more or less everything in the law, there are exceptions. Concepts of the third plea being the best plea or a table-pounding defense lawyer getting dismissals die hard for a reason. Anything can happen, any time. Sometimes jailhouse urban legends come true for lucky defendants. Sometimes courts overturn longstanding precedents.

The law isn’t concrete. It’s constantly evolving on every level. In practice, the law is what the decider decides it is at any given moment, and what matters to the highest court in the country may not mean anything to a lower court judge. Relatively bright individuals can look at a something obvious in ways that may be anything but obvious to other relatively bright individuals.

The basis for the ruling in Miranda v. Arizona probably would’ve looked like a clear loser of an argument before the opinion came down. A warehouse full of crystal balls probably wouldn’t have made the winner in Erie Railroad Co. v. Tompkins obvious. One court’s clear loser may be a higher court’s landmark decision.

That’s a problem when a court disposes of an ineffective assistance claim based on an issue the lawyer didn’t raise. It’s easy for a court to label as a loser something that wasn’t taken all the way to the top. In front of one particular trial judge and one particular appellate court, it may seem clear. Put it in front of some different people and the outcome may be completely different.

Whether you’re the winner or the loser, things are rarely clear. If there’s an issue, and maybe even when it doesn’t look like there’s an issue, the merits of whatever the issue might be won’t be clear until every court that could have decided it has decided it.

When the system makes one court speculate about what other courts would’ve done about an issue they’ve never considered in order to determine a lawyer’s effectiveness, it hardly seems designed to create a fair result. How do we know if someone’s ineffective or not unless we know what would’ve happened? Our system isn’t consistent enough to provide proper guidance.

It seems to me it’s the system that’s ineffective.

To get a client released from custody, I needed to get her accepted into an approved rehab facility. She could only get into the approved rehab facilities by doing an intake appointment. The facilities only set intake appointments for people who are out of custody.

Initially, I would encounter similar situations and become angry. I assumed they were caused by incompetence and thought the people in charge would fix it if they knew what they’d done. Although my anger began to diminish as I encountered those situations over and over again, it flared back up when I finally realized that the people in charge often not only knew what they’d done, but did it for a reason.

These days, when I see a Catch-22, I assume some bureaucrat planned it. I’m right more than frequently than you might think. I regularly see just how far the government will go to create an unfair situation that ensures a certain result without actually having to demand that result. Government incompetence, though pervasive, isn’t universal. Sometimes, things that appear to be incompetence are actually cleverness, albeit evil bureaucratic cleverness.

It would’ve been too easy for the government to just say that it didn’t want my client released. We all know that’s what it wants, but people might get upset if it came out and said it. It figured out a creative way around that problem.

Creating a Catch-22 may seem needlessly complex, but it usually gets the desired result. At the very least, it ties up a defense lawyer for a little while, and it doesn’t make it look like the big bad government is refusing to release people who need to be released. It’s a win-win-win situation for everyone except the real human being involuntarily caught up in the system.

I almost feel as if I should be impressed by the irritating creativity the government musters from time to time.

Unlike those sentencing options, I’ve never much liked the idea of court-ordered fines. It’s easy for me to understand why restitution, supervision, and even incarceration are available options to a sentencing judge. I’m not inherently skeptical about a judge’s motivation in ordering any of those as part of a sentence. That isn’t the case with fines.

I think there’s something fundamentally wrong about a judge with a cushy job and lots of power ordering a poor defendant to give money to a taxpayer-funded court. It’s always struck me as problematic that a judge can lawfully order another person to pay the judge’s employer. It only seems worse to me taking into consideration the fact Arizona has elected judges in many jurisdictions as well as strange things like judicial productivity credits. I think it’s ridiculous that we give the power to order fines to people whose re-election hopes and salaries can hinge on the financial situation of the entity to which the fines are going. It should come as no surprise to anyone that courts frequently bury defendants in all types of fines, surcharges, fees, and assessments. If I can punish you by making you give me and my boss your money, why wouldn’t I?

Yesterday afternoon, I saw a typical exchange between a judge and a defendant as I waited to get a new court date from the clerk in a misdemeanor jurisdiction. It went something like this:

Judge: You haven’t made any payments on your fine.
Defendant: I don’t have any money. I can’t find work. My kids are hungry.
Judge: That’s what you said last time.
Defendant: I’m really trying, I promise. The economy is bad. I’m trying to find work.
Judge: What’s changed between this time and last time?
Defendant: Nothing. I was trying to find work then too. I’m bound to find something sooner or later. Please give me more time.
Judge: You said that last time. Why shouldn’t I just throw you in jail and get it over with?
Defendant: My family needs me. We can’t even afford a fridge. Or a stove. We’re behind on rent. I need to find work.
Judge: I’ll give you one more chance. No matter what, you’re going in next time unless you pay your fines in full
Defendant: Thank you, I promise I’ll do my best.

Given the court and the hour of the day, I imagine the defendant owed the fines in an old DUI case. He had probably been ordered to pay the minimum fine and surcharge, which total over a thousand dollars. He probably had to pay a couple hundred dollars for mandatory alcohol screening plus hundreds more for the recommended alcohol classes. He probably had to pay for his own incarceration costs too. Because of the conviction, if he wants to drive, he probably has to pay about a hundred dollars a month for the mandatory interlock device, and he’d probably have to pay hundreds of extra dollars each year to have special SR-22 insurance. Like with most people, his DUI at some became a money pit. I’m sure it also made it especially tough for him to find work, as lots of jobs won’t hire people with DUIs.

The discussion I heard really bothered me, just like it always does. I hear it all the time. The court, which has ordered a fine, is demanding payment. The defendant, who probably couldn’t even afford decent representation, is stuck trying to pay what most people would consider an enormous amount of money. I’ve found that judges rarely show even the slightest hint of understanding in such situations. I often notice quite the contrast between the shabbily-dressed defendant with work-worn hands and the judge with an expensive watch and delicate hands peeking out from beneath his black robe. I think about how sick it is that a guy who’s walking home to his house with no fridge because he’s too poor to get his license reinstated or buy appliances could be ordered by a judge who’s probably driving his Lexus back to a big home in Paradise Valley to pay a fine to a court housed in a multi-million-dollar building. The court doesn’t need his money. It means the world to him and his family though.

I think the message is supposed to be that crime doesn’t pay. It’s too bad that message is false. Crime does pay. If you get away with it or if you’re the government, that is. Regardless, even if the message was true, it wouldn’t matter. That guy with the DUI lost his license. He went to jail. He attended court then classes then victim impact panels. His life was disrupted and he and everyone around him suffered. Now, some rich guy is threatening to mess up his life and his family’s life a little more because he’s too poor to line the coffers of the rich guy’s even-richer boss. With the crime long since past, the message is not that crime doesn’t pay, but that the system and the people in it can be very, very cruel. It may not have the same ring to it as crime doesn’t pay, but at least it’s true.

I’ve noticed recovering addicts like to stress the importance of living one day at a time, of not letting setbacks cause them to give up and ruin all of their progress. Tomorrow’s a new day. Learn from today’s mistakes and move on. Never give up. Even the most inspirational success stories are filled with relapses. Rich addicts can check themelves into fancy rehab facilities each time they hit rock bottom. Poor addicts mostly find themselves in shackles. Getting clean is a process, and typical addicts amass drug priors before finally conquering their demons.

Priors often result in enhanced sentences. They also bother prosecutor and judges. “Your client just isn’t learning his/her lesson,” they say. Judges and prosecutors shake their heads and point out all of the chances the addict had. Everyone pretends to know how hard it is to get clean, but when it comes to sentencing, it’s always about priors. Sometimes, it makes me think about a demon most people are likely to understand a lot better.

As a society, we are hardly the pinnacle of fitness. Americans are fat, and lawyers are no exception. All of the lawyers reading this can probably name dozens of seriously overweight fellow members of the bar. Many might be prosecutors and judges. You probably know attorneys who fill their office fridges with frozen lean cuisine dinners. They read weight loss books, have gym memberships they rarely use, and jump on every new appetite suppresant that hits the market. They clearly want to lose weight, but they struggle with it. They eat salads at lunch, but they go home and devour a pint of ice cream after a tough day at work. They can’t quit eating, or they can’t commit to exercising enough. I’m sure all of you know the type. You’ve probably seen many of those who did manage to lose a lot of weight fall off the wagon and gain it all back.

There are judges and prosecutor who fit that description. In fact, some of the judges and prosecutors I see throwing priors at my clients and shaking their heads in disgust at what they apparently view as weakness fit that description to a tee. When they act like my clients could’ve just quit and callously flaunt drug priors in their face, I want to analogize relapse and the resulting priors to weight loss. I’ve never done it because I can’t seem to figure out a way to say it to them without being extremely insulting.

I think about my clients’ lives. Some were born with fetal alcohol syndrome. Maybe they were addicted to crack too. They were molested as a kid or beaten within an inch of their life by their dads every time they messed up. They turned to drugs to escape a miserable life of pain and suffering, and they got caught. They tried to stop using. They really tried. They were poor and uneducated and alone in their struggle. They got sober, but they relapsed when their mom died, they lost their house, or they found out they’d gotten hepatitis or HIV or who knows what from years of drug use.

It absolutely disgusts me when overweight prosecutors and judges act like prior drug convictions are anything other than understandable relapses, just like the ones I’m sure they’ve had. The client’s trying to break a crack addiction after a life of hell, and someone who makes a good salary and can’t quit eating donuts is throwing moments of weakness in his face?

I think it’s a good analogy. I’d love to use it, but the people who deserve to hear it would sooner have me held in contempt than take a good look at themselves and feel some empathy. It’s sad for them, but it’s sadder for my clients. If more people thought about relapse and priors as analogous to weight management, something they’re far more likely to relate to, I think I’d see a lot fewer aggravated drug sentences.

A long docket this morning, and I bet at least one inmate will ask to speak to the judge, hoping he’ll sweeten the deal and take the defendant’s side in plea negotiations. The judge won’t, of course, he’ll give his usual speech.

But think about it the other way around. Imagine if the judge weighed in on our side, pressured the defendant to take our deal. That possibility, I trust, makes it clear why a judge must remain neutral.

Although I’ve never practiced in Texas, the post seems to suggest there’s one big way things differ between Arizona and Texas. Here, we have something called a “Donald” advisement. We also have settlement conferences. Every county superior court I’ve appeared in does both. Maricopa County Superior Court goes so far as to order that the parties in every single case participate in a settlement conference. The judges even set deadlines for it.

In State v. Donald, Arizona’s court of appeals made it so a trial court can order the state to reinstate the original plea offer in certain circumstances. The defendant may not have been properly advised about what he faced losing at trial. What we call a Donald advisement is simply telling a defendant on the record what the plea agreement is and what his exposure is. It should be simple, but it can be a very coercive thing. Sometimes, the numbers alone make it that way. Sometimes, judges can’t help but offer their opinions. They may emphasize the benefit of the plea or even tell the defendant it’s a generous offer. At least one judge tries to get defendants say why they won’t accept the offer.

Settlement conferences can be even more coercive. Usually, it starts with the parties meeting with the judge in chambers and explaining their positions. The judge, who fortunately can’t be the trial judge without the consent of the parties, typically picks a side. Sometimes, the judge tells the state the offer needs to improve. I’ve had judges attack prosecutors for making ridiculously harsh offers or even call prosecutors’ supervisors to complain about office policies. On the other hand, I’ve also had plenty of judges tell me they think the offer is fair and my client should take it.

On the record, the judge usually gives a Donald advisement and tells the defendant his opinion about the plea. The defendant gets to talk not just with the judge, but with the prosecutor. Clients usually love settlement conferences. They can ask questions and tell their side of things, and it can’t be used against them because it’s in the context of plea negotiations. It can put the defense lawyer in an awkward position, though, especially when the plea really is a great deal and everyone but the client sees that.

A settlement conference can look a lot like a set up, and whenever I think the hearing is going to result in pressure on my client, I tell him in advance. I explain that he can talk to the judge all he wants, but most settlement conferences result in pleas. It’s worst for the defense lawyer when the plea has a huge benefit. When the client is facing life and has a deal to a few years, you really don’t want to make a record of how crappy the plea is. Talking your client out of a lifesaving offer in open court is an ineffective claim waiting to happen. Watching other people pressure the person who has put their life in your hands is terrible though. It’s all about balancing the various factors at play and using professional judgment.

When D.A. Confidential asks us to imagine if the judge weighed in on the state’s side and pressured the defendant to take its deal, I don’t have to imagine at all. Any Arizona criminal defense attorney is going to know exactly what it’s like.

Starting out in law, a mentor told me one secret to success in criminal defense was showing up on time. Making it to every hearing before it’s supposed to start, he said, would already put me one big step ahead of all but a select few of my colleagues. He told me fellow members of the bar set the standard quite low. Was he right?

On one hand, showing up on time really is pretty unusual for criminal defense attorneys. You know there’s something wrong when courts have to post signs telling lawyers their 8:15 a.m. hearings will be reset if they don’t show up by 10:00 a.m. Courts actually do notice when you’re punctual, and it makes a good impression. On the other hand, showing up on time has probably caused me more headache than good overall.

In most Arizona courts, the defense lawyers call their own cases during regular law and motion calendars. The lawyers line up in the well, like cattle awaiting slaughter, or they check in with the bailiff and sit around until they hear their number. Regardless, most courts will not try to hear a case without the defense lawyer present unless the docket is almost over and every other lawyer who is actually present has had their case called. In courts with long dockets, you might have all morning to swing by and do your hearing.

I don’t mind the system, but it becomes burdensome when you have a habitually tardy client. Imagine you have an 8:00 a.m. hearing and show up right on time. The client, unfortunately, is nowhere to be found. When you call, he says he’s running three hours late.

You can call the case, and the client will get a bench warrant. When he shows up, the court usually won’t take him into custody. The court will set it that afternoon or some other day for another hearing. You’ll have to attend, and your decision to call the case and get out quick earlier will have ended up killing another big chunk of your time. Your client will probably be late to that too, and you may waste three or four more big chunks of time before the court realizes these hearings are punishing everyone except for your client.

If the court does take your client into custody or tells him the bench warrant stands until he’s arrested, you may have even more work to do. You will have to file a motion to quash or a motion to modify release conditions. You may have to fill out a detailed information sheet or go through the hassle of setting it for a hearing on your own. Courts often get irritated when lawyers don’t wait for their clients, as it makes more work for them as well.

In reality, the only thing a lawyer can do is to wait for the client. When he rolls in hours late, you call the case, the court hears it, and it gets set for another hearing for which the client will almost certainly be late. The court has no clue that you waited hours for him, and unless you’re a petty, unethical jerk, you’re not going to make a record about how you were there on time but your client was late.

Clients know this, especially in Maricopa County. Every morning, I hear frustrated lawyers standing in the hallway and yelling into their cellphone about how they have a 10:00 a.m. trial and they told the client to be on time. Threats are pointless, though, as clients know as well as anyone that they can show up as late as they want and only the defense attorney is going to suffer. Threatening a bench warrant isn’t exactly the most professional thing to do, though it may be the only effective way to make a chronically late client show up anywhere close to on time. After they realize the threats are empty, they revert back to being late.

So what’s the solution? As far as I can tell, there isn’t one. I will keep showing up on time, and certain clients will keep showing up at their leisure. I can convert my fee arrangements to hourly billing, but it’ll still needlessly waste a lot of my time. I’ll just get paid for wasting it. When the options involving screwing the client and making more work on one hand versus grinning and bearing the brunt of the client’s discourteousness on the other, it’s pretty clear which option I have to choose.