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» Practice in General

The Court's Mistakes

Imagine a case where the prosecution and defense reach an agreement by the first pretrial conference. At that pretrial, the defendant enters a change of plea in front of a judge who sets the matter for sentencing. The defendant, who is in custody, will be released at sentencing if things go according to plan, and all of the parties involved are extremely satisfied with the result. At sentencing, the judge can’t find the plea in the file. The court, on its own, continues the matter for a brief period of time. However, at the next sentencing, the court still has not found the plea. Another brief continuance. At the next sentencing, when the defense attorney tries to take issue with parts of the probation officer’s … Read entire article »

Filed under: Practice in General

Internet Research

Sometimes, doing research on Lexis, Westlaw, or in a law library can be needlessly time-consuming. Treatises, handbooks, and encyclopedias are helpful, but they aren’t always organized intuitively or updated often enough to provide guidance when I’m dealing with a rapidly-evolving issue. Although it’s essential to verify everything and ultimately base any argument or advice on proper sources, occasionally I’ll use a simple internet search to get an overview of an issue. This is one of my favorite legal websites. It’s very interesting and seems to turn up frequently with Google search terms relevant to the confrontation clause. The sixth amendment is a fairly tricky area of law, and new cases tend to pop up relatively often. It’s nice to know that I can keep abreast of … Read entire article »

Filed under: Practice in General

Terrible Policies

I won’t name names here, but there is one prosecutor’s office in Arizona that has particularly rigid and often ridiculous office policies regarding plea bargains and a number of other important things that, in my opinion, should be left to the sound judgment of individual prosecutors. Some of the office’s policies are so draconian and inflexible that they are known by pretty much anyone who is even minimally involved with Arizona’s criminal justice system. I imagine 99% of people reading this post instantly knew which office I meant after reading the first sentence. Anyway, in two cases this year where I wrote the assigned prosecutors letters presenting overwhelming exculpatory evidence and requesting the cases be dismissed, I had conversations like this: Me: Have you looked over what I gave you? Them: … Read entire article »

Filed under: Practice in General, Professionalism, Prosecutors

Judge Shopping

Sometimes a judge will reject a plea because he or she feels it is too lenient. In fact, I can think of a few judges who do it frequently, and Arizona’s rules contain more than one provision that can be read to permit a change of judge in that situation. After a change of judge occurs, in most instances the plea will be changed and presented to a new judge. However, some judges are willing to accept the old plea without any changes at all. The judges who require some change to the plea are usually adamant about the fact that using the same plea again constitutes “judge shopping” and isn’t allowed. I’ve yet to figure out whether there is in fact a rule against it in … Read entire article »

Filed under: Practice in General, Procedural Rules

Courtroom Manners

In a certain jurisdiction where I regularly find myself practicing, defense attorneys line up to call their cases. Generally, it works out well. If I have a quick matter, like a continuance, the other attorneys let me go first. If I know I’m going to be there for a while, I’ll let other attorneys go ahead. Of course, my primary concern is what my client wants. If my clients want me to call the case as soon as possible, unless there’s a compelling reason not to, that’s exactly what I do. A couple months ago, an attorney showed up (I was the first person in the courtroom, but I was speaking with the bailiff) and went straight to the front. His entire demeanor was arrogant … Read entire article »

Filed under: Practice in General, Professionalism

Deviations and Personal Circumstances

I often write deviation letters to prosecutors. That is especially important in Maricopa County Superior Court, where deputy county attorneys are forced to follow strict and often ridiculous plea bargaining guidelines. In my experience with deviation letters, I have found that letters citing constitutional issues or exculpatory evidence are far more likely to get a deviation than those citing a client’s mitigating personal circumstances. While I can understand that a prosecutor would rather offer a better bargain than lose a case, it concerns me that prosecutors do not give much weight to a client’s otherwise spotless background, bad health, or personal responsibilities. To me it seems that a strong case for the State involving aberrant behavior and a victimless crime should be just as worthy of … Read entire article »

Filed under: Practice in General, Prosecutors

Rules v. Standard Practice

Recently, I amused a judge because I followed the text of a rule of criminal procedure instead of doing what everyone else in the jurisdiction does. He told me I deserved a “gold star,” and I’m not sure how I feel about that. According to the rule, which is very clear, I was responsible for editing a copy of a physicians report within 24 hours of receipt and returning it to the court so it could be made available to the State. Apparently, most attorneys just get the report, redact it at their leisure, and give it to the State a day or so before the hearing. At every step of a case, I tend to look at the governing statue or rule whenever there might be a … Read entire article »

Filed under: Practice in General, Procedural Rules, Professionalism

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