But before I start, I want to offer a shout-out to a new blogger. So far as I know, he becomes the second law-focused blogger (after me) in Fresno.  (If anyone knows others, drop me their info and I may add them to my list.)  Terry stopped me on the way out of court today, although he got my name slightly wrong: he called me “Blogmeister.”  He said he wanted to start a blog, but wasn’t sure what to write about.  We talked awhile and I gave him a suggestion, saying I was planning to write about it also, and encouraged him to join the party.  Here’s the post he wrote after we talked.

Welcome, Terry!

With that out of the way, what follows is my riff on the story.

The Fresno Bee today reported that “Emails from judge/juror cause stir.”  The online version is here.

The front-page, top-of-the-fold, so-important-it-had-to-be-first story starts off with this:

Every juror knows the cardinal rule: Don’t discuss the case with anyone until deliberations.

Well, maybe.  (As in, maybe every juror knows “the cardinal rule.”  And, frankly, I’d rather “the cardinal rule” be “an accused person is innocent unless proven guilty, no matter what anyone tells you.”)

At any rate, the story goes on from there to talk about Judge Oppliger, a former chief homicide prosecutor who was inexplicably left sitting on the jury — along with a clerk for a federal judge and a forensic pathologist — and provides reason to believe he probably did not break the purported cardinal rule.

As the Fresno Bee reports, Judge Oppliger was clearly having fun on the jury panel and, in addition to becoming their leader, he apparently forged some new friendships.  That’s something every defense attorney hopes for when trying a case: to have a chief-homicide-prosecutor-turned-judge leading his pack of new friends to the verdict.

Which was, by the way, “guilty.”

At any rate, the judge appears to be not just having fun, but downright gleeful over his once-in-a-lifetime opportunity.  His emails show him joking around about serving on the jury — “livin’ the dream,” as he called it — but don’t appear to indicate anything untoward.  Frankly, I think any talk of a successful motion for new trial based solely on these emails may be a so-called “Hail Mary pass” and about as likely to succeed.

On the other hand, the PDF file containing the four emails raises more questions than it answers.  The four emails are dated and time-stamped “March 15, 2010 12:09 PM,” “March 16, 2010 3:51 PM,” “April 07, 2010 11:46 AM” and “April 12, 2010 1:33 PM.”

The emails make it clear that there’s something missing.

The “first” email contains the following text:

As we tell all of “them” the only thing that cannot be discussed is “the case, or any of the people or any subject involved in the case.”  So while it behooves us to be responsible and even to error [sic] on the side o [sic] caution, other subjects such as the process fall outside the admonishment but more importantly fall outside the scope of common sense.

Aside from the fact that at the time he wrote this, Judge Oppliger apparently forgot that — to paraphrase Pogo — he is them, the question that comes to my mind is “what caused him to write these words?”  The presence of “Re:” in the email subject line indicates that this is not really the “first” email in the chain.  Furthermore, this paragraph — the only paragraph in the email — does not obviously have anything to do with lunch!

Clearly there’s more, but what was it?  Who said it?

I’ll venture a guess:  Someone — most likely some other judge in the long list of judges in the “To” line — chastised him for something he wrote previously, something that hasn’t been released.  The “second” email, a part of which was quoted by the media, states:

Leave it to you guys to kill my dream of having come full circle.  I suspect the path suggested by [someone with apparently a 4- letter name which is blacked out] will take me into my retirement years.  But here I am livin’ the dream, jury duty with Mugridge and Jenkins!

What dream was killed?  Who is the mysterious 4-letter-named-redacted individual?  If it is one of the recipients of the emails, we appear to have 5 candidates, based on last names; two if the judges refer to one another by first names.  What path did he suggest?  Not sending emails while serving on juries?  If so, it appears to be a suggestion that will be ignored: prior to the start of jury deliberations, apparently, Judge Oppliger asked his fellow judges for a copy of the “top ten reasons that you know you have been on a jury to [sic] long when:” for his “friends.”

As I said, that email alone should strike fear into the heart of every defense attorney.

So now inquiring minds with FOIA requests want to know: where are the “missing” emails?  What information do they contain?

Why did the judge presiding over the trial, who was one of the recipients of the emails, not say anything about them until after the verdict?

And maybe two more: Does Judge Oppliger still feel that he’s “livin’ the dream”?  Or will his dream, in fact, turn out to be one helluva nightmare?

Friday’s court session made me realize I had no choice.

To get into a juvenile courtroom in Fresno County through the front door of that courtroom is impossible unless the door is opened from the inside.  For anyone.  It’s physically impossible.

To get out of that courtroom is impossible without a keycard.  Defense attorneys — except public defenders and employees of the firm that handles conflict cases the public defender cannot take — do not have keycards.  Obviously, family members of minors brought before the court, as well as the minors themselves, are also not given such cards.

Since it is nearly impossible to exit the courtroom, why are numerous minors brought before the juvenile court shackled?

In a word, it happens because of an illegal policy, and local judges who have chosen to thumb their noses at the California Supreme Court.  Fresno County, it seems, is not a part of the State of California.  We are not subject to the jurisdiction of the California Supreme Court.  Their opinions are advisory only.

About the middle of this past year, I attempted to challenge the policy because the California Supreme Court has clearly held that the reliance on “policy” is illegal.  The essential circumstances are outlined in this linked brief.

The immediate upshot of my objection was that the court allowed the Sheriff’s Department a couple of hours to come up with an excuse for investigate why the minor was shackled and ordered requested they have someone present in the afternoon to state the excuse provide the reason for the shackling.  During that time, the minor was apparently kept in a cell adjacent to the courtroom, because when I attempted to visit him at the Juvenile Justice Campus, I was told he was not there, that he was in the cell adjacent to the courtroom and that there was no way that the Juvenile Justice Campus could contact anyone to inform them I wanted to visit the client.  The Juvenile Court, it should be noted, is located on the Juvenile Justice Campus.

During the afternoon session, the sole witness was a deputy who had researched the issue.  The prosecutor led him through a series of questions about the minor’s behavior during six months of custody.  The minor had been a bad boy.  He sometimes yelled at other minors.  He occasionally broke the rules by, for example, banging on his door or not standing up properly in line.  Over a six-month period, there were — as I recall — a couple dozen incidents.  (A later attempt by me to argue that this was a fairly typical record for juveniles in the pod met a retort from the court that there was no such evidence before the court and that the court believed “most” juveniles in the pods followed the rules.  Any juvenile defense lawyer can tell you otherwise.  Next time, I will put “a few” witnesses on the stand who can testify about such things under oath.)

On cross-examination, the deputy stated that he had never seen, nor was he informed of, any incidents involving the minor being disruptive in court, or on the way to court.  I periodically noted, for the record, that my client had sat quietly next to me throughout the proceedings — at least once pointing out that he had responded to questions from the court by appending the honorific following his response.  The deputy further testified, under oath, that the policy of the Sheriff’s Department was to shackle all juveniles wearing purple shirts.  The purple shirts apparently signified that they came from a particular pod.  The criteria for being placed in the pod was either unclear or unknown.  (My own experience shows that it does not seem to be necessarily related to behavior.)  The deputy was not sure why “purple shirts” were shackled, merely stating that was the policy.

Notwithstanding the testimony of the deputy making it clear the minor was shackled because “that was the policy,” the court held that he was shackled — as the law allowed — for particularized reasons.  Although I had argued that the particularized reasons should relate to behavior within the courtroom, the court rejected this, going on to state specifically that he was shackled because of his “disruptive” behavior while in his cell, or in the pod.

The court then made the rather astounding statement, on the record, after having found that there were particularized reasons why the minor needed to be shackled during the proceedings, that:

It’s just an arraignment where a plea or a denial is entered.  We do not have a trial.  We do not have a disposition and the Court finds that there are safety concerns; there are disruptive concerns based upon the nonconforming behavior that the minor has demonstrated while he has been in Juvenile Hall.

Now that having been said, the minor has behaved and done extraordinarily well in court.  There is no reason for me to believe that he wouldn’t.

Let me repeat that.  The judge stated that the minor had behaved “extraordinarily well” during the hours spent in court that day.  He went on to state “There is no reason for me to believe that he wouldn’t.”  No reason!

So why were the restraints necessary again?

Before I could get the copy of the transcript and complete a writ on the issue, the misdemeanor case — did I forget to mention that it was a misdemeanor case? — was dismissed “in the interests of justice.”  This is often a euphemism for “we don’t have enough evidence to move forward, but we don’t want to say that on the record.”  I cannot prove that my making it clear I was not going to drop the matter is the reason for the dismissal.

Immediately after the hearing, I revised a form I utilize for keeping progress notes on my cases in court.   At the top, I added “OOC/IC” for “out of custody/in custody.”  Next to that, I have: “Shackles? Y N CO NA” — “Yes  No Cuffs-Only Not-Applicable.”  Whenever I go into court now, I circle the appropriate acronyms.  Suffice it to say that I intend someday that this will be useful.  (If only I could convince other defense attorneys to keep track.)

I was pleasantly surprised to note for quite some time that my clients were not coming to court in shackles.

Okay.  So now we get to what I mentioned at the beginning of this post: Friday’s hearing in another juvenile case.   My client is brought into court and he’s in shackles.  I noted that he’s been present numerous times in the past without shackles.  I asked the reason he was shackled this day and, of course, nobody knew.  The court asked the bailiff to find out.  The bailiff invoked the presiding judge’s “one-hour-to-find-an-excuse-reason” rule.   She had, meanwhile, called for backup the minute I started complaining about the shackles.

Her supervisor having arrived in response to the call, the court suggested that the minor be unshackled and the extra deputy remain in the courtroom; there being two of them, it would be that much harder for my client to escape the locked private enclave where the public cannot see what is happening.  It would also be harder for him to jump up, get around the (fairly massive) table and sprint the 30 feet or so to the hyper-elevated bench before the two deputies accidentally shot the judge to death or mistakenly tasered his clerk.

Still, that seems reasonable, doesn’t it?  Remove handcuffs for a kid — a kid! — who was there to be told he was going to a group home before being reunited with his parents, and allow two armed deputies to stand nearby instead.

“No! That’s not how it’s done!,” exclaimed the bailiff.  And, I kid you not, she used her “stop right there” voice.  The judge (quite briefly) looked startled.

Now if I had used that tone, or spoken those words, to a judge?  I probably would escape tasering, but not a tongue-lashing.  (I know, because I once made the mistake of muttering to my client in a near whisper, “Or as the Constitution does” when a judge told me I would get as much time to cross-examine someone as he allowed.  But that’s another story.)

The judge, however, did not respond to the bailiff as he would to me.  Perhaps it’s because she’s armed.  Instead, he said, “Oh…okay.”  I looked at him and said, “The law says the judge is in control of his own courtroom,” but was told in no uncertain terms that “we aren’t going to get into that.”

After consultation with my client, he decided that he wanted no further delay and was willing to proceed with the hearing, ignoring the shackling issue.

But here’s the kicker:  As I was being escorted from the courtroom — remember, it is impossible to get out unless the bailiff unlocks the door — I asked the bailiff why my client was shackled today, when he has never been shackled before.

Her response?  “Our policy hasn’t changed, Mr. Horowitz.”

Regardless of where I post my articles, I’m always an officer of the court.  (People v. Superior Court (Rishwain, Hakeem & Ellis) (1989) 215 Cal.App.3d 1411, 1413 [264 Cal.Rptr. 28]; Tejeda v. Blas (1987) 196 Cal.App.3d 1335, 1341 [242 Cal.Rptr. 538]; Leversen v. Superior Court (1983) 34 Cal.3d 530, 537 [194 Cal.Rptr. 448].)  I cite cases for that because some prosecutors and law enforcement officials disagree.

Even courts seem to disagree at times.  I’m still learning the rules, but near as I can tell it works like this:  When they want me to do something I’m resisting, I’m reminded that I’m an officer of the court.  The rest of the time, I’m a criminal defense attorney, which means I’m not to be trusted.

At least this is how I learned it right before my first trial.  Immediately before, in fact.  Numerous times, I’d had a judge refer to me as an officer of the court when asking me to do something that I thought was contrary to my client’s interest.  “I’m asking you in your capacity as an officer of this court,” the judge would say.

My first trial as an attorney in my own right — as a student, I’d sat second chair in a special circumstances murder trial, handled a complete traffic trial and argued before the Fifth Appellate District Court — was a juvenile case.

The way things work in Fresno, we start out the morning of trial at the Juvenile courthouse.  If the trial is a “long-cause trial,” meaning it will last more than a couple or three hours, and if the attorneys are all ready to proceed, we get sent downtown to the main courthouse.  Someone has to carry the file from the Juvenile Court to the main Court.

As it turns out, the Deputy District Attorney had stepped out of the room for a moment.  The judge asked where he was, because he wanted “someone” to carry the file downtown.  I offered to do so “in my capacity as an officer of the court.”  There was actually — I kid you not — a little bit of a snicker.  I was thanked.  And the Deputy District Attorney was located and given the file.

Last week, the Fresno Bee carried a front-page story about a “new” problem with attorneys — well, with defense attorneys, but not with prosecutors — at the Madera courthouse.   It seems that, without probable cause, defense attorneys are now being required to remove their belts before they can enter.  The rationale behind this is allegedly that it’s meant to increase safety within the courthouse.  How removing a belt does that, I’m not exactly sure.  But that’s their story and apparently they’re sticking to it.  Although (according to the Fresno Bee story) they’re not really sure whose idea it was.

And although the only recent attack on the courthouse in Madera that anyone can remember came from a prosecutor, it is only “regular” attorneys and not prosecutors who are subject to the search.  Prosecutors, dangerous as they have so far proven to be, actually literally have the keys to the courthouse.

Anyone who has read my blog before knows this sort of thing isn’t really new.  In Fresno County, defense attorneys are routinely searched prior to entering the courthouse; prosecutors, law enforcement and other known “good guys” are usually just waived through.  (In fairness, of late I’ve noticed that some deputies will also waive their unconstitutional right to warrantless searches of defense attorneys if they know them well enough.)

The problem of making access more difficult for defense attorneys isn’t limited to the courthouse.  And, frankly, this highlights the problem of allowing law enforcement types — whether private security, sheriff’s deputies, probation officers, or judges — to have complete and final say over who gets access.

In Tulare County, for example, they purport to have a rule that bars defense attorneys from visiting prisoners unless the defense attorney in question is the “attorney of record.”  The attorney of record is the attorney whom the court knows is representing the accused person.  This is almost always a public defender, at least in the beginning of a case.  However, some people will then scrape, beg, or borrow money to hire a private attorney.  Usually (but not always) the attorney will want to speak to the potential client prior to being hired.  Where the “attorney of record” rule is enforced — and even in Tulare County, it is not enforced at every jail, or even all the time at a single jail — this will not be possible.  You cannot become the attorney of record until you have been hired and recognized as the attorney of record by a court; you cannot visit a potential client, in other words, until he is an actual client.

In actuality, this is illegal.  California Penal Code section 825, subsection (b) states:

After the arrest, any attorney at law entitled to practice in the courts of record of California, may, at the request of the prisoner or any relative of the prisoner, visit the prisoner. Any officer having charge of the prisoner who willfully refuses or neglects to allow that attorney to visit a prisoner is guilty of a misdemeanor. Any officer having a prisoner in charge, who refuses to allow the attorney to visit the prisoner when proper application is made, shall forfeit and pay to the party aggrieved the sum of five hundred dollars ($500), to be recovered by action in any court of competent jurisdiction.

Good luck trying to find a California District Attorney willing to charge the officer with the misdemeanor.  You’ll likely have no better luck getting a California court to allow recovery of the $500 from the officer.  (And, of course, it will likely cost more than $500 to hire an attorney to even try to recover that $500!)  But that just gets me back to the problem of California courts refusing to follow the law.

Most recently, I’ve encountered the “Only-The-Attorney-Of-Record” rule in Fresno County at the Juvenile Justice Campus (JJC).  Ironically, it happens even when I am the attorney of record, but word of this has not yet reached the JJC.  I’ll drive out to the JJC to visit a client, or potential client, only to find myself barred from entering because I’m not the attorney of record.

Now in this instance, I can see no justification whatsoever for the rule.  In particular, I don’t see how barring one attorney over another increases security.  And no justification has been offered, other than “that’s the policy.”  Bringing up Penal Code section 825(b) actually evoked the response, “That doesn’t apply here.  These are juveniles.”

And yet, they are prisoners.  And probation officers are officers.  And when I visit, I’m doing so because the family, or the potential client, or both, has asked me to visit so we can decide whether I will become the attorney of record.

I guess what I’m going to have to do is test this in court.  I’m hoping that test will come one of the days I’m an officer of the court.

But I’m worried about my chances for this.  Challenging jails and juvenile facilities for access doesn’t come under the rubric of “resisting something the court wants me to so.”  So I just have to hope you don’t have to be the attorney of record to be an officer of the court.