Splendid Isolation

…You know, I expected 2020 to bring all sorts of new challenges for me to face.  I expected to grow in brand new ways and to launch my career in the face of social strife.  Still, I have to say: “being quarantined at home due to a global pandemic” was not exactly the kind of challenge I had in mind.

For those living under a rock (or those reading from the future), the entire world is currently in the grip of COVID-19, a coronavirus pandemic that started in December 2019 and accelerated rapidly over 3 months.  Over the last few weeks, almost everywhere and everyone seems to be in fear of this new disease, which currently has no cure or vaccine.  Because this disease is particularly dangerous to those with compromised immune systems and those over 60, health authorities everywhere are encouraging people everywhere to minimize social gatherings, work from home, and keep a distance of 6 feet from others while traveling outdoors.  Unfortunately, a lot of people in Oregon have not gotten the memo about this and have been packing beaches and hiking trails over the past few weekends.  Because we apparently can’t have nice things, the Governor has thereby signed an executive order mandating staying at home except for grocery/medical/other necessary purposes and attaching criminal penalties for noncompliance.  While I am a little uncomfortable about this heavy-handed use of criminal law (and concerned about how this order can be enforced without seriously violating privacy), I hope this order will convince people in this state to start taking the pandemic seriously.  As of writing this, Tillamook County has only 2 confirmed cases of COVID-19—on behalf of my clients and colleagues, I hope it stays that way.

The COVID-19 pandemic has affected all walks of life, and I am not exempt.  Initially, my work was mostly unaffected by the pandemic, but the county authorities soon started to put measures into effect.  First, hand sanitizer stations were placed at all courtroom entrances and jail visits were strictly limited.  Next, the DA’s office put measures into place so that I could only check my discovery box once a day.  Then, the court closed 1 of the courtrooms and started setting over cases.  Now, the courthouse has completely shut down except for necessary hearings (usually involving cases with jailed defendants).  The courts and Sheriff's Office have taken steps to limit the jail population, releasing inmates early and granting conditional release to all but the most risky defendants (as of now, only 1 of my active clients is detained; the rest are on conditional release or bail).  Some of my clients have benefited, as jail sentences are now usually kept low and probation with few conditions is the norm.  Meanwhile, my work has mostly ground to a halt.  Almost every court appointment I had scheduled in the next 2 weeks has now been set over to July, and I hardly ever go to my office anymore.  Most of my “work” these days consists of calling clients to tell them their court dates have been moved back while I sit quarantined in my room.  I haven’t worn a suit in several days, and I sometimes have to remind myself that I’m still a lawyer.  Until health authorities are able to get COVID-19 under control, this will likely remain my existence for the foreseeable future.

For now, I’m doing my part to help matters and avoid spreading infection.  I’ve been staying indoors (mostly in my room) all day for the past few days, and I only ever leave the house to get groceries or take care of something pressing at the office.  I’ve been doing my best to get by; mostly, I sleep a lot (a luxury I haven’t had in quite a while).  I can’t eat out, and I’m hesitant to cook in the communal kitchen, so I’ve mostly been living off of cheese, crackers, dried fruit, and protein bars for the last week or so.  With relatively little work to do and many places in town off limits, I’m taking various steps to keep myself occupied: I’ve been watching/re-watching various movies on my Netflix queue, catching up on Castlevania on Netflix, reading a self-help book, Facetiming Cthulhu (my sweetheart, not The Sleeper of R’lyeh), playing video games (mostly bouncing between Apollo Justice: Ace Attorney, Assassin’s Creed IV: Black Flag, Super Mario Bros., Kitty Powers’ Matchmaker, and Plague Inc.: Evolved so far), searching the Internet for possible new suit accessories,  and working on this blog.  With a lot at stake, I hope for a return to normalcy soon.  Until then, I’ll keep washing my hands, get plenty of rest, and try to enjoy my alone time.

My "getting through quarantine" starter pack.

Trial by Ordeal

Well, it’s finally happened: after week after week of plea bargaining and pretrial hearings, I have finally tried a case in Tillamook County!  I’ve tried cases before (back when I was a court-certified law student), but my first “official” “professional” trial feels like quite the milestone!

This was a trial in the making for quite a while, involving an incident from last year.  There have been other trials that have been slated on my calendar for the past 2 months, but here’s the weird thing about trials: they VERY RARELY go through.  As I’ve alluded to in previous entries, it’s estimated that about 95–98% of all criminal cases end with a plea deal.  I don’t have the exact statistics for my caseload, but I think I’ve had less than 5 cases that didn’t end in a plea bargain.  Even when clients initially reject a plea deal, they tend to change their mind after a few weeks in jail.  As such, all of my scheduled trials for January and February ended up delayed or cancelled.  February is a good illustration of this: by mid-January, I had 4 trials set for February—one each week.  However, 3 clients changed their pleas last-second at settlement conferences (meetings held a week before trial to make sure the trial is still on) and 1 trial was set over until April.  Setovers are common in this line of work—with only 2 judges/courtrooms, there are many instances where multiple trials are scheduled for the same courtroom on the same day.  To accommodate this, priority is given to older cases and detained defendants, with low-priority cases getting moved back.  Between clients pleading out and limited court resources, it’s something of a minor miracle for a trial to actually start—a miracle I got to experience firsthand after weeks of delays.

My miracle occurred on March 3; it was a misdemeanor case I had first been assigned in December (I won’t go into details).  The reason this case took so long to get to trial was the need for proper investigation; there was scanty evidence supporting my defense theory, so I needed my private investigator (yes, I have a private investigator—Oregon Public Defense Services reimburses him for every investigation and he is EXTREMELY helpful) to search the crime scene and talk to witnesses.  Ultimately, the investigation yielded little, and I had to proceed to trial with what I had.  My client waived her right to a jury trial, so it was a bench trial.  This was a little reassuring for me; bench trials are a little less formal and require a bit less preparation.  When the big day arrived, I was ready to go.  For the entire morning, I broke out the skills I learned in law school and honed at the Public Defender of Marion County: I made appropriate objections, cross-examined the witnesses, futzed with technology (there was some difficulty in playing back body cam footage—the DA’s office almost had to break out one of their laptops reserved for collecting, er, special evidence in sensitive cases), made an impassioned motion for judgment of acquittal (which the judge promptly denied), and stumbled my way through a closing argument (which was the only area that I felt really needed work).  Finally, the defense rested, and my work was over.  The judge went over the evidence, discussed his views on the case, and delivered his verdict: Guilty.  Sometimes, no matter how hard you work, the facts and law don’t always support your client; convictions are inevitable when you do criminal defense.  As per my client’s request, sentencing was set over a week so that we could discuss our options and strategize.

Sentencing wasn’t the only thing on my mind for the rest of the week—I had another trial scheduled for March 10, with the previous case’s sentencing set for a recess in the middle of the day (this is a common arrangement that is necessary when you only have 2 courtrooms).  After a jailhouse meeting with my now-convicted client, I spent most of my spare energy on getting ready for my next trial.  I was all ready to go…but the trial was set over a month on March 9 (huge surprise there).  As such, March 10 ended up being more relaxed than usual, with only sentencing requiring my urgent attention.  The prosecutor and I agreed that my client didn’t belong in jail—the place we differed was the matter of probation.  The state wanted to impose 18 months of probation, complete with mandatory mental health/anger treatment programs and no-contact orders with the victim and witnesses.  Conversely, I argued that my client was not a danger to anyone and that the 60+ days that she had already spent behind bars was sufficient punishment enough.  After hearing our positions, the judge (a different judge—the trial judge was out sick) stated that she didn’t see any value to probation in this case and went with my position, sentencing my client to 60 days jail and authorizing her release on credit for time served.  With that, my client was a free woman, free from state interference even after a long-delayed trial..  In this way, even though I lost the trial, I kind of won the case.  Not bad for my 6th month as a lawyer!

With almost 6 whole months of lawyer experience and 1 whole lawyer trial under my belt, I feel like I’ve been settling into my existence as a small-town criminal defense attorney.  I have plenty of more trials on the horizon, but I’m feeling more ready for them.  Some of my clients tell me that rumors of my incompetence/inexperience are rampant in the jail, but I’ve developed a thick skin.  My current feelings can best be summed up by an experience I had at a suppression hearing I had last week.  After both sides presented motions, memos, and arguments, the judge said that she would take the matter under consideration and issue a ruling later (as of now, the matter is still unresolved).  However, she asked to see me in her chambers afterwards.  Keeping cool externally, I panicked internally, wondering what I had done wrong.  Were my legal points way off-base?  Did I botch my oral argument?  When I appeared in front of her, she said “I just wanted to say: great work on your motion!  It’s refreshing to read a defense motion that actually focuses on the case instead of reciting every legal rule without context.”  I left the courthouse in a great mood, sure that I can take whatever this profession throws at me.

(In a writing-based note, I’d like to say a special thanks to Professor Ed Harri, my Legal Research and Writing professor who passed away last week.  There is no doubt that he helped me become the lawyer I am today.  He constantly challenged me to improve my skills, encouraged me to join Willamette Law Review, and was a great role model throughout my budding legal career.  Thank you, Professor Harri.)

In non-trial news, here’s another installment of…

GREAT MOMENTS IN TILLAMOOK JURISPRUDENCE

*insert sophisticated music*

Episode VI: Ignored Instructions

Judge: [finishing arraignment] Sir, we’ll have you back for case management next week.

Defendant: OK.  Look, Your Honor, I just want to get this over with; I’m really sorry…

Benjamin D. Fischberg, Attorney at Law: [cutting in] Sir, you’re being recorded.  You should probably stop talking for now.

D: Look, I just want to say that I’m sorry about…

J: [cutting in] Sir, as Mr. Fischberg has advised, everything you’re saying is being recorded.

D: But I really want to resolve this.  Can’t I say something?

J: Sir, Mr. Fischberg has given you sound advice to not say anything.  I’m also advising you to not say anything, but you are allowed to speak if you really want to.

D: I understand, and I appreciate the advice, but I have to get this out.

[Defendant proceeds to confess to the charges in detail, explaining that he made poor judgments and is willing to pay the penalty.]

J: …Alright, case management will be next week.