Time I’ll Never Get Back

At Tempe Criminal Defense, Matt Brown offers an amusing anecdote about how a court clerk at the Mesa Municipal Court acts as if he didn’t exist.

The court called us at 2:25 p.m. and left a message about getting our position on the state’s motion to continue trial.  That’s right, the state’s motion.  Not ours.  The motion the state didn’t bother faxing us until 3:45 p.m.

I called the court back sometime shortly before 5:00 p.m. and spoke with a very pleasant lady.  She wanted to know my position on the state’s motion.  I told her we didn’t oppose it and had in fact filed our own motion.  She asked for me to wait a moment and came back a bit later.

“Oh my goodness, so you did!”

See? No harm, no foul.  If you don’t mind the fact that when the prosecution burps, the court system jumps. When the defense submits papers to the court, it may eventually find them. Or not. But if no harm followed, then the wheels of justice ground perfectly.  Courts sometimes have a slightly different definition of “ground perfectly” than do the rest of us.

Is this a Mesa Municipal Court problem?  Is this a Matt Brown problem?  Maybe an Arizona problem?  Well, not exactly.  In a few minutes from now, I’ll be heading off to court today.  Not because I want to go to court today. I don’t.

The last time the case for which I’ll be in court today was on, a motion schedule was set up with a return date in May. The May date would be the next time we would be in court, and in the interim, I would prepare my motions on behalf of my client.  As is my way, I returned from court and diligently went to work.

A few days before my motions were due, a call came in from the judge’s law secretary informing me that everything that happened the last time we went to court was now gone, as if it never happened.  “What gives,” I asked?

“The prosecution wants to put the plea offer on the record,” he responded.

So I explained that we had a meeting before the last court appearance, where a plea offer was made.  I counteroffered that they dismiss the indictment and provide a handwritten letter of apology. Neither offer was accepted.

“So why can’t the prosecutor send a letter, copy the court, so we can just proceed with the case as already scheduled?” I replied.  It’s not that I don’t love spending a morning going to court for no cognizable reason, by the way.

The judge’s law secretary then explained, “well, they are going to add, on the record, that the plea offer will be withdrawn once you file motions.”  Ah. The squeeze play.

“I’ve already discussed the offer with my client, and he rejected it. They can withdraw the offer now and save me a trip.  It’s really not worth my time to waste my morning for this.”

I heard a sigh on the phone, as if I was being deliberately dense. Maybe I was. “The judge wants it to be put on the record as well,” he finally said.  The judge card.  I was trumped.

That the prosecution wanted to do the squeeze play in court was understandable.  That’s the way they get the greatest impact on the defendant, place him in an unfamiliar, foreboding environment. Scare the crap out of him as best they can.  No one scares easier than an innocent person, as they have the most to lose. So the prosecution sought to set the stage for maximum effect, hoping to pluck as much of the low-hanging fruit as possible.

I understood why the judge wanted this as well.  The indictment is huge, with far more defendants than could possibly be tried together.  There would be an avalanche of motions if he didn’t thin the herd, and that would overwhelm the judge and his staff.  It would consume vast resources.  Judicial economy, at its most meaningful, comes into play.

If defendants are going to cop out, let them do so before the court gets buried in motions.  Take that needless burden off the court’s shoulders. It’s got enough to do just to deal with the stronger defendants. Let the weaker ones go. Go! Take your plea and be off!  Then we can get down to business.

Frankly, I can appreciate the court’s view.  Defendants will most assuredly fall, including defendants who are innocent. I have no idea who is innocent or guilty, or who would be wise to plead guilty or not, except as to my client and a few others.  If they have good reason to plead, or don’t have the stomach for the fight, then pleading early rather than suck up the court’s time that could be better used on those defendants who are in it for the long haul is in the court’s best interest, and likely mine as well. Whether it’s in theirs is not my call and may never be known.

The problem with this view is that there is much to be done, and gained, during the motion phase of the case. There are huge issues that can make or break the prosecution, and from my seat, the prosecution has some very serious problems.  This, in part, is why they are working so hard to push for pleas, so that they can pick the low-hanging fruit now, before they get the benefit of favorable rulings.  After they plead out, there’s no complaining when the defendants who stayed and fought come away with dismissal.

And what does this have to do with Matt Brown’s experience with the Mesa Municipal Court clerk?  I will lose half a day going to court for something that really has nothing whatsoever to do with my client, but is a concession that was agreed upon without my knowing about it so that the prosecution’s interest, and the court’s interest, are served at my expense.

My time means nothing. My client’s time means nothing. Our time will be wasted to play our roles in a charade.

In a few hours, I will formally reject a plea offer for the second time, snarkily reiterate my counteroffer (which may or may not bring a smile to the judge’s face) and thereupon hand over my motions.  The prosecution’s bluff will be called.  My morning will be lost forever.

The plea had already been refused and would have been refused no matter what squeeze play was employed, but it will now play out in court because nobody could care less about my time or my client’s time, or even ask us if playing our bit parts in this charade was worthy of anyone’s effort.

We will be there. After all, in the great scheme of the legal system, the important players make the call and the bit players do as they are told.  Like Matt’s motion, which wasn’t worthy of notice, my time isn’t worthy of concern.  At least not today.  But should the case not be dismissed and go to trial, that’s another story.

7 comments on “Time I’ll Never Get Back

  1. PaulaMarie Susi

    What an appalling waste of time. In my courtroom the govt would be directed to put that in a letter, to which you would reply, then we could get down to the business of motions and trial dates. Oh, and a good case manager never needs to use “the Judge said” card. Please.

    1. SHG Post author

      Postmortem, the judge was very funny about the whole thing, telling me that it was really at his behest due to that damn Supreme Court opening the door to post-conviction ineffective assistance claims for failing to discuss plea offers, and leaving a caring judge to make sure that the defendant was fully apprised of the plea before it was lost. He would never waste the time of “such an important lawyer” otherwise. Ouch. He yanked my chain in the process, for fun, and I yanked his back, also for fun. As it happens, I like the judge a lot and enjoy seeing him. Not enough to lose a half day for nothing, but at least we made some sport of it so it wasn’t a total waste.

      1. PaulaMarie Susi

        Understood (and yes, he yanked your chain, lol), but again I think that can be accomplished in letter form and reviewed at the time of the motions argument. just my .02, I hate wasting peoples time, even when it’s fun.

  2. Brett Middleton

    I bet law schools would face a dwindling pile of applications if prospective students were forced to read this post instead of watching another episode of “Matlock” or “Boston Legal”. It certainly gave ME a “ewww” reaction that made me glad I picked animal husbandry. (Not that there is any occupation that is entirely free of senseless wastes of time. But, still …)



    “Your hypocrisy makes me sick. Every court appearance means more money for you money-grubbing criminal defence lawyers. I’ve no doubt that you deliberately provoked the hearing by your ornery defiance of What’s Right and Proper. Ker-ching ! Every other lawyer there is on a salary and only doing their job, protecting us from the scum that you represent.”

    That’s what the guy on Twitter (a.k.a. yer man in the pub) said was the case the other day, anyway.

    1. SHG Post author

      Ah yes, the money-grubbing guild, playing tricks on the unsuspecting to steal their money. I must be doing it wrong.

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