Tuesday, March 10, 2009
Judge v. Defendant - and the luxury of watching and thinking
Here
http://www.nbc-2.com/Articles/readarticle.asp?articleid=26732&z=69
is a video of a defendant irritating a judge. You've really got to envy the defense attorney whose client tells the judge, "Come on, you're smarter than that" at his sentencing.
I think I would have requested the gag to go with the manacles and chains.
Here at the county of cattle and crimes, I observed an interesting court trial yesterday. The defendant was a former local police officer. He claimed denial of due process because the citation that he received had his first court appearance approximately 25 days after the day he received the citation. He pointed out that the infraction rule (come on, who reads those) clearly stated that the first appearance had to be not less than 5 days nor more than 21 days from the date of the citation. The prosecutor had not much to say with regard to the novel argument. The court took the matter under advisement as it was a question that had never arisen and some research would be needed to answer the question. It did give me an opportunity to consider what I would have said in that prosecutor's place; I would have said the following:
"Due process means ample or sufficient process to protect the defendant's rights. In this case, the procedural rule provides for a specific window of time for the defendant's first appearance and that window was missed in this case. However, the defendant has still had his day in court and the extra time that he was allowed to have has not in anyway harmed him. He has presented no witnesses whose memories might have lapsed in the short extension of time allowed in this case. He has not demonstrated or claimed any harm because of procedural irregularity. The rule provides no specific remedy for this particular irregularity, but typically, procedural irregularities do not equate to a "get our of jail free card." (Inspite of what some jailhouse lawyers will profess.) Therefore, the proper course is to determine whether there has been any prejudice because of the irregularity, and in this case there has been none. The defendant has had sufficient and ample process." - Of course, had I actually been in the prosecutor's chair, I would have likely babbled incoherently, but without the spotlight trained on me, I was free to come up with the above while the man actually in the arena did the babbling.
In speaking with the judge later, he indicated his research indicated that the question was whether the defendant was prejudiced by the procedure, and since he wasn't, no problem. Of course, then it occurred to me that even with the time to think about it, I had still missed the magic word, "prejudice." But at least my ramblings would have been in the right neighborhood, even if I had missed the correct legal term.
UPDATE: Two items, 1) I see that my rambling did include the word "prejudice" and 2) there is actually a criminal rule that says no dismissals if the error is harmless - it's amazing what you can find in that mysterious rule book.
http://www.nbc-2.com/Articles/readarticle.asp?articleid=26732&z=69
is a video of a defendant irritating a judge. You've really got to envy the defense attorney whose client tells the judge, "Come on, you're smarter than that" at his sentencing.
I think I would have requested the gag to go with the manacles and chains.
Here at the county of cattle and crimes, I observed an interesting court trial yesterday. The defendant was a former local police officer. He claimed denial of due process because the citation that he received had his first court appearance approximately 25 days after the day he received the citation. He pointed out that the infraction rule (come on, who reads those) clearly stated that the first appearance had to be not less than 5 days nor more than 21 days from the date of the citation. The prosecutor had not much to say with regard to the novel argument. The court took the matter under advisement as it was a question that had never arisen and some research would be needed to answer the question. It did give me an opportunity to consider what I would have said in that prosecutor's place; I would have said the following:
"Due process means ample or sufficient process to protect the defendant's rights. In this case, the procedural rule provides for a specific window of time for the defendant's first appearance and that window was missed in this case. However, the defendant has still had his day in court and the extra time that he was allowed to have has not in anyway harmed him. He has presented no witnesses whose memories might have lapsed in the short extension of time allowed in this case. He has not demonstrated or claimed any harm because of procedural irregularity. The rule provides no specific remedy for this particular irregularity, but typically, procedural irregularities do not equate to a "get our of jail free card." (Inspite of what some jailhouse lawyers will profess.) Therefore, the proper course is to determine whether there has been any prejudice because of the irregularity, and in this case there has been none. The defendant has had sufficient and ample process." - Of course, had I actually been in the prosecutor's chair, I would have likely babbled incoherently, but without the spotlight trained on me, I was free to come up with the above while the man actually in the arena did the babbling.
In speaking with the judge later, he indicated his research indicated that the question was whether the defendant was prejudiced by the procedure, and since he wasn't, no problem. Of course, then it occurred to me that even with the time to think about it, I had still missed the magic word, "prejudice." But at least my ramblings would have been in the right neighborhood, even if I had missed the correct legal term.
UPDATE: Two items, 1) I see that my rambling did include the word "prejudice" and 2) there is actually a criminal rule that says no dismissals if the error is harmless - it's amazing what you can find in that mysterious rule book.
// posted by Zerin Hood @ 9:33 PM 
