Wednesday, December 14, 2005

defending 'those people'

My supervisor, bless his heart, is adamant about not letting me take on cases right now that aren't easily resolved - for instance, cases that are pled or dismissed at the first appearance.  I appreciate this; however, starting in January, I will officially be on the schedule like a real attorney, instead of 1/3 of an attorney like I am now, and I anticipate that this will result in a lot of fumbling on my part.  So yesterday I begged him to let me take a few cases in the afternoon, cases that won't all be resolved by the first appearance but maybe by the second day in court, and he relented. 
 
One case turned out to be a classic case of alleged domestic assault.  The complaining witness showed up to court on behalf of her husband, who was my client.  She spoke with me directly and told me that she did not want to go forward with the charges and that she advised the District Attorney's office as such.  Up until she spoke to me, I had been working under the assumption that a certain plea offer would be made, if any offer were being made, and if not, then it would progress as cases do when they aren't resolved in the first two appearances.  Once she stated that she had no intention of going forward, I knew that the DA would not be able to pursue the case.  Thus, as far as I'm concerned, any plea would be a bad plea.  I explained to the complaining witness how the legal process works and what the DA needs, generally and from her in particular, in order to go forward.  She stated to me that she was not going to do any of those things.
 
I was talking about my day with my roommate, and explaining generally that I had a case that will end up falling short of the legal burden necessary to go forward, and how this excites my legal mind.  I didn't feel bad, or dirty - as a matter of fact, I felt like I was doing competent work.  And of course I still believe that this case is progressing as it should.  But I stopped when I realized that my roommate was grimacing slightly, and I realized it was one of those, "How do you defend those people?" moments. 

6 comments:

Audacity said...

Our Solicitor's Office doesn't care that the victim doesn't want to press charges. They will go out on the weekend before trial and subpoena her ass with a stern reminder that she needs to be in court. And if she shows up and says, "I don't want to prosecute," they will make her testify.

Bastards.

Melissa said...

Heh my former home place didn't care either. They would go on without victim, especially if the victim called 911. They would use any pictures the police took and the cops, and the 911 tapes.

Goofy

Anonymous said...

Melissa,
Why is that goofy? It's not rhetorical; I'm genuinely curious about why you think that.

Anonymous said...

In our state there would likely have been a no contact/restraining order forbidding contact between the client and the complainant/victim. If we had contact with her without first filing a motion asking for permission, the State would charge our client (and maybe us) with the crime of violating the no contact order. Also, as noted by others, most prosecutors these days consider "recantation" to be just further evidence of the abuse syndrome and they will proceed with a "victimless" prosecution. As for the "how can you represent those people" looks, you will actually get past that sooner than you think if you remain a PD for any length of time. People either get it or they don't. It was true when John Adams represented the British soliders accused of murdering Americans and it is true today.

Another PD

Blonde Justice said...

Sometimes they don't need the complainant to testify. I've had cases (not many, but a few), where the prosecutor was able to go forward with a 911 tape of the complainant saying "Help! He's hitting me!" (Excited utterance, Crawford Issue) and photos of the injuries.

So, don't put all your chickens in that basket yet. Or, whatever that saying is.

(In other words, still prep the case like it might go somewhere. If nothing else, you get valuable experience for the next DV case.)

Anonymous said...

Melissa said...

Heh my former home place didn't care either. They would go on without victim, especially if the victim called 911. They would use any pictures the police took and the cops, and the 911 tapes.

Goofy

===

We should all remember to object to testimonial hearsay (eg, 911 tapes) on Crawford v WA (2004) grounds.