A Guilty Plea

We have all had clients who insist on pleading guilty. Unfortunately the defendant must make a factual basis for the plea. On occasion that is difficult. In the last instance of this I have experienced, the charge was stealing a vehicle which is a class D felony carrying a sentence of not more than five years. The defendant and his friends, though, only wanted to get from one place to another, not steal the vehicle. Unauthorized use of a motor vehicle is not a felony but an aggravated misdemeanor carrying a sentence of two years. The agreement was that the defendant plead to a felony and be sentenced to the five year term. The choice is to allow your client to plead to something he did not do or find some other charge to which he can plead. Judges don't much care for defendants pleading guilty to something they didn't do or to go through the most of the guilty plea colloquy and then reject the plea because no factual basis can be made. In other words, a defendant must be able to tell the judge that he committed the crime for which he is charged. Lying is not an option. An attorney can not allow a client to tell him one thing and then get in front of the judge and tell the judge something different. I did have a client tell me one time that he would just lie: "I'm a criminal and criminals lie". That may be the case but contrary to public perception, attorneys are not criminals and do not lie or they do not remain attorneys for long. But back to the point, it appeared to me that since the defendant did take the car, without permission, and contrary to the wishes of the owner, and he had control of it, that he could make a factual basis for misappropriation of property. It is a close call, but since under Iowa law there are now innumerable methods by which one can be accused of theft, it can work. The vehicle may not have been stolen, but it certainly was misappropriated. The distinction between "stolen" and "misappropriated" is murky, but apparently the legislature seems to think there is enough of a difference to call it by a different name. The car was certainly misappropriated and the defendant is now safely incarcerated in the Iowa prison system where he gave every indication of wanting to be.

Luck

Don't ever say that luck isn't a part of it, because it is. I had a sentencing scheduled for this morning. The defendant had pled to two felonies and had warrants out for him from two different states, several of which were for probation violations. In our entire district there is but one judge that just might consider probation. I had informed my client that the chances were slim to none that he would get probation and would be sentenced to five years in prison. Arriving at the courthouse, the regularly scheduled judge was gone and the only judge in our district who might even consider probation for the defendant was our sitting judge. And don't you just know it, the defendant received a suspended sentence. You tell your client in such cases just how miraculous it is they dodged the bullet. You really can't take credit for it. It just happens. Sometimes you just get lucky--nothing more can be said about it. The attorney doesn't have to tell the defendant that his legal skills had little to do with it; that it was just luck. The defendant will not be listening nor understanding and knowing only that he is not going to prison today and will think you are a really good attorney and hopefully tell all his friends just that. So there you have it for today's day in court.

The Testifying Defendant

One can say it is either interesting or depressing when the defendant says something while on the stand that is utterly certain to ensure the judge will find him guilty. Every attorney who has ever tried a case knows that it is fortunate, if not miraculous, to have a client who will not say something while testifying that is contrary to what he should have said. The prosecution, the cops, the state's witnesses have a story to tell--a story of the defendant's heinous action, or outrageous conduct, or criminal act for which he is standing before the court or jury to be judged. Your job, as a criminal defense attorney, is to tell a different story--one of innocent misunderstanding. This, you try the best you know how, to inculcate into your client, the defendant. It is not the story itself, but how you tell it that matters. Rather than saying "He was in my face so I punched him", say "I thought he was going to hit me, so I hit him first." The first statement could very well convict you of an assault, but the second statement could very well describe self-defense; ergo, an acquittal. A second example of deflated expectation occurs when your client, the defendant, has related the facts of the situation to you on several different occasions and you as the trial attorney have a clear understanding of what the testimony will be and have developed your strategy for your client's defense from what your client has related to you. But then, on the stand, testifies contrary to what he has told you or has omitted to tell you a significant detail that most certainly will result in a conviction. "Oh, I forgot to tell you that he said he didn't want to fight." That sort of thing. On these occasions, you just remind yourself that at least you will get paid since you have a retainer and your client will blame you for being found guilty and tell his friends that you are a lousy lawyer and never go to him for help. Not to brag, but I think that trial attorneys have to be a different sort of folk. If you can't expect the unexpected at trial and be able to assimilate it and use it the best you can, don't try cases. If ungrateful clients leave you depressed and anxious, don't tell your clients what they don't want to hear. If you take losing personally, don't involve yourself with disputes. For every trial there is a winner and a loser. Losing is inevitable. If you as an attorney need, for your own satisfaction, a win in every case, stay out of the courtroom. If you are a person who believes those you help should be grateful, don't practice law--find another line of work.

Jail Rounds

Yesterday was taken up with making the rounds of jails--Jasper, Marion, and Warren County jails. Some counties, you know, have built new jails because we want to put more people in them and a few counties, so far, have refused to spend the money to do it; Warren County being one who retains their old jail on the third floor of their courthouse. You would think that would facilitate the movement of prisoners from jail to courtroom--having them in the same building. The opposite has occurred. My experience is that it takes more time to have a prisoner transported from jail to courtroom in Warren County than any other county with which I have experience. One factor to consider is the elevator must be the slowest on record. I think one can go to the top of 801 Grand and down quicker than arriving at the third floor jail in the Warren County Courthouse. I did not visit the Powshiek County jail nor the Polk County jail where I currently have defendants incarcerated. Five jails in one day is just too much jail time. Besides an attorney can not speak with his client in Powshiek without speaking through glass which I find objectionable and the topic of future blogs. Powshiek also put their county attorney's office in the jail building. I'm not sure of the motivation for this other than they were plainly cheap. The jail is also on the outskirts of Montezuma which means you can't walk to and from. For anyone contemplating a crime, you might consider the accomodations prior to committing it. Some jails are better than others. I have not been into the interior of the Warren County jail, nor can one see in as you can in some, but one can only assume that the accomodations are not what they are in the newer facilities such as Jasper County and Marion County. And I will add that the jail staffs in Jasper and Marion are helpful--they do not make it difficult to speak with your client. Consequently if you are contemplating stealing a car, or driving one without a license, or driving one while intoxicated, or liberating a stereo system from one; give some thought as to which county would be the best if caught. There are other factors to consider as well, but this would be a good place to begin your analysis of the best county in which to commit a crime.

Allocution

When a defendant is being sentenced for a crime committed, he or she has the right of allocution. The right of allocution is the opportunity for the defendant to speak to the judge to give his or her side of the story, to request leniency, to say he or she will never do it again, etc. This is a statutory right; it is deemed important. It just doesn't seem right to punish a person without giving the person the chance to say a few words or explain him or herself. Of course, as with many things in life, it works in opposite fashion from the intention. As late as this week when the judge asks the defendant if he has anything further to say, I whisper to him "no" and finally he shuts up before the judge does decide to send him to jail. Defendants with very few exceptions do not think before they speak nor would they ever ask their legal counsel what they should or should not say. The latter is the more important: "what not to say". Invariably the more a defendant says the more likely he or she will go to jail. Do not tell the judge you want to "Get my life back together" or "Get on the right track" or "I've learned my lesson" or "I need treatment" or "I won't do it again". The judge has heard each of these statements a zillion times and they signify nothing. Instead tell the judge, if possible, that you are working, that you actually have a place to live other than with your parents or fiancee, that you are supporting your children if any, or that you actually have given some thought to the circumstances that brought you before the judge in the first place, if it is the first place even though normally it is not the first place but the umpteenth place. In other words when the judge asks you if you have anything to say respond by saying no and let your attorney do the talking.

Local Attorney

It is a good rule to hire a local attorney if you are charged with a crime. The perfect example of what not to do occurred yesterday in Jasper County. A young women was charged with OWI 1st offense. She had engaged a Cedar Rapids attorney to represent her. She pled guilty and requested that her two day jail sentence be credited by attending a weekend drinking driver class. First, we do not have the weekend OWI class as an alternative in Jasper County; and secondly, our local judge wouldn't allow it even if we did. Merely asking for the weekend drinking driving school irritates the local judge. This was the first mistake that the out-of-town attorney made. Unfortunately she had had a deferred judgment on a previous OWI. Unbeknown to the out-of-town attorney, again, when a person has a previous charge of OWI and whether deferred or not, our local judge more often than not sentences the defendant to seven days in jail, not the standard two for a first offense. So not only was the defendant expecting to be able to do her two days in a weekend OWI class, but she was expecting to do two days--not seven which she received. The out-of-town attorney also requested that mittimus issue later also being ignorant of the fact that our local judge makes all defendants go directly to jail from the courtroom when sentenced to jail. All of this was a great shock to the young woman and her attorney who, I'm sure, was mortified that he had not properly prepared his client for her fate. If you do hire an out-of-town attorney to handle a local criminal matter, it is advisable for your attorney to at least consult with a local attorney on what to expect from the local judge. Fewer surprises that way.

Wednesday in Jasper County

I spent the morning in jail and the afternoon in court. That's more like it! Judge McCall was sitting in for Judge Mott today and court was held in the big, north courtroom which meant that there was confusion in the halls of the third floor of the courthouse. A sign was posted but very little attention was paid to it since most of the folk attending court have been there before either for themselves, family members,friends, or fiancees. This brings me to the word "fiancee". All, 100%, of my clients not married have fiancees--not girl friends, but fiancees. I occasionally ask a client when he plans to wed which draws a blank stare at best since the word "fiancee" is no longer associated with the words "wedding", "engagement", "engagement ring" or any other word or idea associated with marriage. Back to today, I saw a number of clients at the Jasper County Jail. They are usually happy to see me although they do have lapses in judgment. This was not one of those days though and we discussed family, alcohol, drugs, absconding, bond: the usual sort of things. Not much was accomplished. My repeat public intox violator believes he needs treatment and wants to ask the court for treatment. I did suggest to him that the court would inquire as to why he hasn't gone to treatment if he desires it so badly. I think the answer had something to do with time; he just never had the time to go to treatment. Another defendant had his bond revoked when he bailed out of treatment and picked up a new felony charge. He wasn't sure what his bond was, but he wanted it reduced so he could return to his family. A third defendant is charged with providing a controlled, prescription drug to a young lady in return for some sexual activity unspecified. His defense appears to be that since he is unable to perform any sexual activity, the charges should fail accordingly. And lastly my client who simply doesn't think he should be in jail. He has way too many responsibilities on the outside to be sitting in jail. A very impatient lad if I do say so myself. Impetuous too which is the major cause of his current incarceration. This ends my jail experience for the day and haven't time to discuss afternoon courtroom drama.