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.