Did a little trial prep this morning for my trial scheduled Thursday in Marshalltown. The pretrial order states that we are fourth up. I have been told I need to call the county attorney's office Monday and possible later in the week also to determine if any of the three ahead of us will go to trial or they have settled. This does not seem to be a very efficient manner of running a trial docket. Of course, the judge is not inconvenienced, but if you have witnesses, it can be quite costly and very annoying to witnesses who plan on attending then are told it will be some other date. It is the maxim of minimizing the inconvenience to the court while maximizing the inconvenience of the litigants.

Marshall County

I have a case in Marshall County which is scheduled for trial next week. Every county handles their case load differently. I was told at the pretrial conference yesterday that they might have 10 cases on the docket for Thursday, including mine. The first case on the list that doesn't settle will go to trial that day. The others will need to be rescheduled. I must call the county attorney on Monday to see where we are on the list and apparently continue to call to see what has fallen out ahead of us. This is inconvenient. If we have a case where several witnesses need to be subpoenaed, you might have to subpoena them several different times and, in addition, keep them posted on developments. This is especially annoying if they are hostile witnesses and you really don't want to talk to them. And yes, occasionally you do call a hostile witness. This is done when you know that what they are to say contradicts other hostile witnesses or in some other fashion helps your case.

On the fourth floor of the Marshall County Courthouse there is a room where the attorneys congregate to cut their deals, determine which cases will go to trial. I did notice that the public defender had a stack of files about a foot and a half high which indicates to me that numerous defendants don't see much of their attorney. And, of course, the representative from the public defender's office was the attorney in the room with the least sense of humor, the least talkative, and generally unfriendly. This reinforces my opinion that the defense bar and the public defender's office have a degree of separation that is unhealthy. This situation does not exist in the federal system where the public defender's office and the private bar are on very good terms and the public defender's office provides assistance when asked from simple advice to briefs. This needs to be fixed.

A lesson reinforced. When the prosecutor doesn't offer you anything, you let the judge decide. We had a probation violation hearing this afternoon--Thursday, 25 March 2010. The county attorney and the probation offer suggested, not without a certain smirk, that my client should just agree to do his time and have his probation revoked. This is not an offer that warrants acquiescence. Neither I nor my client thought it much of a deal so we had a hearing. The allegation was of 12 different violations nine of which were not answering the VICAP call. If I have the letters correctly, it stands for the machine that a probationer must put on his phone and answer when called and which also register breath alcohol. Judge Mott did not find any violations and released the defendant from custody. I really didn't think that we would prevail, but we did. I guess neither the county attorney, the probation officer, nor myself properly evaluated the case--at least in the mind of Judge Mott.

In the second hearing that I had scheduled in front of Magistrate Rickers, my client and two others were charged with trespass. Another brilliant charge filed by Officer Chris Wing. Three went into an apartment to retrieve a couch and other items that all agreed belonged to one of the three. The girl of the apartment told the two girls entering the apartment to leave. There were a few words, the girls picked up what they could carry and left the apartment. The boy who had come with them carried out the couch by himself. All three were charged with trespass presumably under the theory that the three did not leave the very instant the girl of the apartment told them to leave. Apparently discussion is not allowed. I and Joanie Greif had co-defendants and between us and the city attorney there were to be ten witnesses. The earlier hearings did not finish until almost four. Rather than continue the matter the city attorney dismissed the charges. He had earlier stated that he would dismiss the charges if the defendants paid the costs. I really do get tired of that practice. It happens continually. "Oh, we will dismiss the charges if your client pays the costs." Most defendants take the deal to not face the possibility of a conviction. I don't like it and do when I can refuse to do it.

Court Service with Judge Mott

Arrived late for Judge Mott's court this morning. Court services in Wednesday. Court services means people go to jail, placed on probation, get fined; or, simply plead to a criminal charge, set further hearings including trials. As I said I arrived late and there was standing room only when I did arrive. I was a 100% today--all clients present and accounted for. This is an unusual occurrence in that usually one or more has forgotten, never knew, or just doesn't want to come.

Some say that Judge Mott does not give deferred judgments or deferred sentences. That is incorrect--he does when the situation warrants it. My count this morning was three guilty pleas, two sentencings, and a bond review hearing. Afraid I may not have been successful on the bond review matter, but the Judge has not ruled. It is my opinion, my client should stay in jail until his current charges are resolved. He does not seem to have the ability to stay out of jail for he is continually incurring new charges. The only method open to him to resolve his legal problems may be simply to stay in jail pending trial on the current charges. Some just can't win--bad karma.

Spent the morning in the Jasper County Courthouse with Judge Hulse and opposing counsel. A trial was scheduled for purposes of modifying visitation. Opposing counsel, I, and the judge talked it out and took it to the clients. One accepted, one did not. Prior to actually hearing the case, the judge made it clear how he would rule given the facts as he understood them. Consequently, the parties stipulated and that stipulation was read into the record. The entire proceeding took about two hours. I think we could have actually tried the case in an hour. The opposing party was not happy with the result and let it be known to the attorney and my client after the matter was finally resolved. It is difficult to control some clients and to make them understand that if they can not agree with the other side, the judge will decide and neither party may be very happy. In this case the one party was quite literally forced to agree and stipulate or anticipate the judge would do worse, which he certainly threatened to do. I do not feel victorious in this battle, but it helps to have a party that is reasonable, willing to compromise, with an attorney who can do the same.

A very short day in Judge Mott's court this morning. I had one pretrial conference scheduled. Since we took depositions yesterday and it is clear to me that my client will be convicted, we negotiated a plea and set a plea date out so he could get his evaluation at Capstone. Alcohol seems to be the issue with him and the mother of his child. He has a record and we talked about the fact that if he didn't drink he wouldn't have one. This is where the social work part of defense counsel comes in. If you represent someone for a crime, you know the cause of the problem, and you know where he can go to at least begin to get some assistance, then part of representing someone, it seems to me, is to do what you can to help him. And, if he is amenable and understands that what you recommend is in his best interest and he appears to have a modicum of intelligence and capacity, and it might mean some jail time for him, so be it. Success is not necessarily measured in the shortness of the jail time.

Suppress it?

One can not ever, ever guarantee, be assured of, or know what will come from the mouth of a witness. We had a suppression hearing this afternoon in front of Judge Mott. With a reasonable degree of certainity, we had an even chance. After all, it is the State's burden--correct? But this does presuppose that one has a general ideal of the testimony that will be given. One has spoken with his client and the witnesses about the events in question--their version of the facts. Occasionally one is pleased at the testimony one had no idea would come out, but more often one scrolling through the words and phrases that come to mind while driving in traffic in rush hour. Don't know how this particular hearing will resolve itself, but will submit a short memorandum in support of our position.

The issue that presented itself, the issue that I was unaware, is whether an peace officer can purloin the code to a punch lock of an apartment building and enter at will, without consent, and without the knowledge of the owner or the tenants. Don't know the answer.