A criminal prosecution is often a game of hurry up and wait.  After the shock of the arrest wears off, inexperienced defendants are often surprised at how uneventful a prosecution seems to be, with court appearances where nothing happens and lengthy delays from court date to court date. 

In complex federal cases, defendants out on a PRB (personal recognizance bond) are often excused from appearing, and it may seem like they no longer have much of anything to do with the case.  Given the significance of a criminal prosecution to their lives, this disconnect causes the experience to seem surreal.

In beginning, the defendant may call regularly to ask what’s going on, what are you doing, what will happen next.  Naturally, the perpetual question gets asked:  What’s going to happen.  And after the 27 time explaining that the ball is in the prosecution’s court, whether to provide discovery, respond to motions, whatever, and that there is nothing more to tell except that you are there, ready, willing and able to fight, there is nothing much to do for the time being.  Eventually, even the most ardent and involved defendant will take a deep breath.

Then one day, out of the blue, a shoe drops.  Whether it’s the delivery of 187 boxes of documents, videotapes in flagranti delicto or a plea agreement with an expiration date, the time has come when you need to meet with the client.  Now.

So you dial the telephone number.  Ring.  Ring.  Ring.  Nothing.  You call the cellphone.  No answer and the mailbox is full.  Send an email.  Not even read, no less returned.  For all you know, your client has been practicing his penmanship so the cops will know he wrote “suicide is painless.”

Having tried every means available to you, you find it impossible to get hold of your client.  It’s conceivable that he has flown the coop, but you never thought that would happen.  He could be dead.  That can happen too.  Or something else.  The problem is that you don’t know how to reach him, but you do know that you need him now.

There are certain assumptions under which we all labor.  One is that when we dial a telephone number, there will be someone on the other end who is available to answer.  Normally, this is the case.  Occasionally, it’s not.  Don’t try to explain this to the judge, however, as he has a surefire way to make sure you know how to find your client whenever you need him.  The client will not be happy with the judge’s solution.

The reason this has come up is that a case that I’ve been handling for more than a year, with little happening as a result of governmental inertia and a court’s reluctance to pressure the government to actually do anything, popped on me last week.  My client, one of the most pleasant defendants I’ve had the pleasure of representing, had been interested, involved and available for the first few months of the case.  But as it dragged on, going nowhere fast, he grew bored with it and, following my advice, went about his life.

Last week’s appearance, unlike numerous prior court appearances, held a surprise.  The judge decided that this case was sitting on his calender far too long, and therefore shifted the momentum from the prosecution (who had been entirely responsible for all delay up to that point) to the defense, demanding that we suddenly take immediate action to give the appearance that the Speedy Trial Act was honored.  Suddenly, I needed my client.

Calls were made.  Emails were sent.  Messages were left.  And nothing.

As it turns out, my client heeded the call of the eastern end of Long Island, where New Yorkers go in the warmer months to relax and contemplate life.  Plenty of sandy beaches.  Few cell towers.

Even though I had instructed the defendant to let me know if he went anywhere that might prevent me from reaching him on a moment’s notice, he had lapsed into such a dulled state that he saw no harm in taking a few days away without informing me.  He didn’t think it would be a problem.

The moral of the story is that no matter how a case appears to drag on pointlessly, lawyers must keep abreast of their clients’ whereabouts, and clients must keep their lawyer aware of their trips to happier locales.  If I can’t reach you, I will assume you’re dead.  And I really, really hate it when that happens.