Seriously.

Sometimes people will ask me how I became a criminal defense lawyer. I tell them the truth: I used to have a high-paying job. I got tired of it. Decided having (enough) money was just too much for me, so I decided to go to law school and become a lawyer instead.

When I went to law school, it was with very different ideas about what kind of lawyer I would be than the ones I….

Wait…how do I put this? I started to say “than the ones I had coming out.” The problem is that my ideas of what kind of lawyer I will be are still evolving, four years after I started my solo criminal defense law practice. I have no idea what kind of lawyer I’m going to be. On my best days, I think “a good one.” On many days, I wonder if I’ll ever be good enough. On not a few days, I wonder if I’ll just throw in the towel and try to go back to having a real life.

This much I worry about: will I become the kind of criminal defense lawyer who too carefully focuses on “picking” his “fight”?

Let’s go back to the ideas I had going into law school. No, let’s go back a little farther, because that’s what you really need to know in order to understand what happened to me.

From the late 1980s to the mid-1990s, I attended California State University, Fresno. Affectionately known as “Fresno State University” — a name deemed not appropriately “chic” by…well, those who prefer “California State University, Fresno” — it’s not exactly an Ivy League school. I studied a lot of things. I didn’t have a goal, other than to see what I could learn. I was interested in anthropology, psychology, history. I ultimately ended up somehow with more classes in philosophy.

I like to say that I studied philosophy “with an emphasis in cognitive science,” but officially, CSUF did not have such a degree; ultimately, I graduated with a degree in plain ol’ philosophy (with a lot of what CSUF called “independent study” credits wherein I studied cognitive science, which is what I was really interested in). How does a “person” spring out of what is best described as a grayish-white biological curd? Is it epiphenomenal? Or was Descartes right? Or will the evolution of science turn us all into reductionists?

Despite this obvious interest in people, I ended up working in the technology field for quite awhile after graduating. Ironically, it was the interest in cognitive science that did it. Back in the early 1990s, we were using a quaint little (by today’s standards) network called either “ARPAnet,” or “the internet,” which connected a growing number of universities, so that we could explore connectionist theories of how the brain worked, model brain processes. Many of us, along the way, got hooked on the side effects of “the internet”: email, IRC (Internet Relay Chat), and other means of communicating with people we might never meet. (Almost 20 years later, I still have a friend — Avi Golden of New York — in a slightly-parabolic orbit of friends, whom I’ve never met even though at periods of our lives we’ve communicated almost daily.)

When I graduated, I wanted to stay connected somehow. And right around that time, Mosaic, the “web browser” that would help popularize the Internet, came to be. “Ordinary” people could now get on the Internet; that is, you didn’t have to be involved in some kind of research and sign up for an account through the university. I won’t bore you with the details, but my prior experience with the Internet — and the absence of ads in the “Help Wanted” section of The Fresno Bee seeking Philosophers — made me a shoo-in with the first ISPs (Internet Service Providers) in the Fresno area.

Eventually that lead to a good-paying job as Director of Information Systems for the then-third-largest yellow page company in the United States, which just happened to have its home office in Fresno, where I met Jim Varon, in-house counsel.

The man whose words would later doom me to law school.

When I went to law school after a more-than-six-year hiatus from academic pursuits, I was re-exposed to a bunch of people supposedly pursuing (or so I thought) higher-level learning. Although I had anticipated becoming a “technology” lawyer, whatever that was, I was appalled at some of what I was hearing from the “Law & Order” crowd. I still remember the turning point; the day I knew I was going to be a criminal defense lawyer.

We were reading a case meant to teach “the legal meaning” of “willful,” as opposed to the ordinary everyday meaning of “willful,” which just happens to be fairly close to the same thing. As I recall now, the relevant facts involved a man convicted for “willful refusal to pay child support.” Only it wasn’t, the appellate court said, because he was homeless, didn’t have any money and — if I’m remembering it correctly — he might even have had some mental issues which precluded his ability to have “willfully” refused to pay.

One of my classmates was horrified. “I can’t believe they let him off on that technicality!,” she exclaimed.

Technicality.

From that moment on, I knew what I was going to be doing as an attorney.

I fight over technicalities, only I refer to them as “laws.” (Sometimes I fight against laws which are immoral and “technically” shouldn’t exist because they clash with more foundational principles of our Republic, but the explication of that requires another post.)

In the case of the homeless man, the “technicality” was that, as the law was written, the man was not guilty. Appellate courts do sometimes get it right. (You know what they say about blind squirrels.) As I put it that day, my classmate’s complaint was like whining about a judge dismissing the murder charge just because the murder victim walks into the courtroom.

Technicalities matter.

Too often, though, criminal defense lawyers ignore technicalities, especially if they happen to be “small.” Like the fact that in Madera County, defendants sometimes don’t receive notice of their hearings, which results in an FTA — a “failure to appear” — charge. And, at least in Madera County, a refusal to allow the case to be put back on calendar without payment of $100 dollars.

When I went in to put a new client’s case on calendar and was told about this, I asked a simple question: “What’s the legal basis for that?”

Guess what?

There isn’t one.

The clerk tried to say that a judge signed an order saying they could do this back in 2005. I asked to see the order, stating that I thought that order would be an illegal order.

Guess what?

There isn’t one.

Or, at least, after searching for an hour, they can’t find one. But, they assure me!, they have it somewhere. And my client isn’t getting on calendar — a warrant for his arrest will remain outstanding — until we pay the $100.

It would be easy to ignore the “technicality” of this requirement having no basis in law. It’s just a small thing, which has — since 2005 at least — brought in a bunch o’ money for the County of Madera. Apparently, no other criminal defense attorney ever thought it was worth asking, “Why?”

And we CDLs, we have to pick our fights. I mean, $100 — it’s not really that much, is it? Don’t poor people use $100 bills to light their cigarettes (for which they pay close to $100 per pack now)?

It’s just a small thing, like the requirement that the failure to pay child support be willful, or that a murder case actually have a dead victim.

For my part, I’ll be filing a writ to get my client’s case on calendar.

Comments

• January 22, 2011, Ernie Menard writes: Yeah, okay. What are you going to do when your writ is circular filed? A ruling can't be made on a document that never existed - you'll have nothing to appeal. Perhaps nothing that your client produces, such as this writ, can be docketed until the fee has been paid. I'm not being totally facetious as a similar situation but without the caveat of unpaid fees- the loss of filed motions - has happened to me on two occasions, in different courthouses, in different jurisdictions. Frankly, not having enough experience or knowledge I didn't know what to do about it. Anyhow, I hope you post about the drama that will surround the ruling about the writ.
• January 22, 2011, RickH writes: There is an existing case. There is an existing complaint. And there is a clerk refusing to allow the case to be put on calendar without the prior payment of a fee for which there is no legal basis. Maybe I will find out I'm wrong, but I think this provides a basis for a writ of mandamus and prohibition.
• January 22, 2011, Ernie Menard writes: Educate me. Does the writ have to be filed with the clerk's office?
• January 22, 2011, Lyle Jones writes: I agree--file the writ. It'll be interesting to know the result.
• January 22, 2011, RickH writes: You're welcome to schedule an appointment in my office for a consultation if you wish to be educated about something. My blog is a place I write my opinions regarding things I encounter. It is not a place for the giving of legal advice. Thanks for understanding.

Related posts:

• Types of Cases
• Time to Fight Back?
• Letter from Mike T.

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?

Comments

• April 17, 2010, A Jury of His Pears | Fresno Criminal Defense writes: [...] may recall that yesterday, I blogged about the incidents involving Judge Oppliger, who, while serving as a jury foreman, “arguably” engaged in misconduct by sending [...]

Related posts:

• A Jury of His Pears
• You Will Respect Mah Authoritay!
• Fresno Never Overreacts

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.”

Comments

• November 15, 2009, Joni writes: Well, even if there's no way in or out without a card, a prisoner is a prisoner for a reason. And I would prefer him to be secured (okay, shackled) rather than running loose in the room free to grab hostages if he so desires. There was a case in Houston just yesterday in fact, where this idiot went on a 10-day crime spree culminating in the death of a woman crushed between two cars, one of which this idiot was driving. He hit her deliberately. Such a person, with nothing to lose, presumably, is not someone I want "loose" in a courtroom. At least not until and unless he's proven not guilty.
• November 16, 2009, RickH writes: A prisoner, in the cases I'm talking about, anyway, is a person who has been accused of a crime and is innocent unless proven otherwise. Additionally, we're talking about children here. But your comment touches on another point which I've been meaning to blog about for a long time: the idea that because there's a one in a million shot of something happening, we have to take steps to prevent it, even if it means mistreating hundreds of thousands or even millions of people who would never do the things you want to prevent. I also love the idea that you twisted the time-worn American tradition -- the one that made our nation great -- on its head. People are not guilty from the day they are born until the day they are proven guilty of some crime. We don't take people into court to prove them not guilty. It's the other way around: the State believes they have committed a crime and it is the responsibility, the burden, of the State to prove that what the State believes is true beyond a reasonable doubt. Thank you for being brave enough to be the living demonstration of what's gone wrong with our "justice" system. Like you, most people today assume guilt and wait to have someone show them that they are wrong. This is what leads to shackling children. This is what leads us to mistrust everyone and to assume the worst of each fellow citizen. This is what has lead to the downfall of the United States of America. The only thing left now is for us to find a way to make it official.
• November 16, 2009, Joni writes: Well my knee-jerk reaction is a product of the rampant violence in our society, Rick. Violence which law enforcement seems powerless to do anything about. Just this weekend, in the Houston Metropolitan area alone, a woman was killed by a killer on a 10-day crime spree with a stolen SUV, a 79-year old woman was killed feet from her front door by a mindicant who has a long history of violence; a mother and her two young children are dead at the hands of the mother's boyfriend who suffered from bipolar disorder and spend the day in terror as she repeatedly begged and pleaded with Montgomery County police to help her cope. And on and on and on.
• November 16, 2009, Joni writes: I've ALWAYS been pretty much FOR the death penalty, even with the recent DNA findings. And I firmly believe that death is the absolute cure for recidivism. And especially lately, with these heinous crimes being committed by everyone, youngsters too, this is not the time for mollycoddling. I don't think cops are hauling in innocent people and drawing and quartering them. I believe in the legal system (note, I refrained from calling it a justice system, because it is far from that). Read the opinion out of Indiana about Ian Clark, who killed, in cold blood, little 2 year old Samantha, his girlfriend's daughter left in his care. People like this are vermin, they are beyond redemption and as far as I'm concerned, should be exterminated. I know this is a far reach from your post. But I also think it is disengenuous for you to argue that shackles aren't warranted in most cases. Even if one is innocent, one abides by the rules of the court. And those rules are there to protect the majority. Once the defendant is adjudicated, if he's found innocent, shackles come off. Works for me.
• November 16, 2009, RickH writes: Yeah, I guess I don't feel enough like God, nor do I have enough faith in the other flesh-and-blood gods walking through life with me, to believe that we get it right. I can imagine nothing less horrible than being innocent, knowing you're innocent and being up against folks who think you should be killed unless you can prove that you're not guilty. But, more importantly, this post is about shackling children. More to the point, neither case involved anyone -- even a child -- who had committed a felony or shown his or herself to be violent. Re-read what the judge said about the child who was sitting next to me who was there accused but not convicted (never was, by the way, at least not in that case -- I don't know about any other cases with that child) of a misdemeanor.
• November 19, 2009, Second Guessing Your Attorney | Probable Cause writes: [...] the law doesn’t apply to the case to avoid a result you don’t want.  When I see things like this, it’s the only conclusion that makes sense.  You aren’t impartial: you’re afraid [...]
• December 31, 2009, Starfish: The Obligatory End-of-Year Post | Probable Cause writes: [...] And after yesterday, where the primary evidence my client might misbehave involved such things as arguing with other kids during a handball game, I can assure you it’s true: the policy has not changed. [...]
• February 19, 2010, The Shame of the Juvenile Court | Probable Cause writes: [...] which, right now in Fresno means me — who challenges this decision will find that although everyone knows the reason is “policy,” the court will then give the deputies at least an hour after a challenge to come up with an excuse [...]
• February 26, 2010, Three-Thousand and Zero | Fresno Criminal Defense writes: [...] written one or more articles on this situation in the past, so I won’t go into all the arguments against [...]

Related posts:

• Letter from Mike T.
• Three-Thousand and Zero
• Under New Management

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.

Comments

• May 12, 2009, Eric Essman writes: Mr. Horowitz: I found your article interesting. Unfortunately I do not agree with you about the public perception of police officers and prosecutors being the "good guys" and defending attorneys being the "bad guys". I wish police officers were thought of as the good guys because that is what they are the vast majority of the time. Unfortunately most people think of them in a less than favorable light. Video clips such as the one you posted showing two officers striking a suspect without explaining what went on immediately before that incident, lends fuel to the fire when it comes to having a fair minded view of our police force. Every incident has at least three parts to it. What went on immediately before the incident, the incident itself and what happened immediately after the incident. To judge a police officer on a few seconds or even a few minutes of a video clip is not fair or just. I am sure that if you were defending a client who was being prosecuted on the basis of a video clip, you yourself would bring up these same issues.I think most competent attorney's would. But yet when it comes to the police no such issues deserve consideration. They are found guilty (in the public eye) without benefit of knowing the context of their actions and without knowing what prompted them to act in such a fashion. Police are usually presumed guilty (by most people)until proved innocent and that saddens me very much. Police are the people who keep us safe at night, so when the morning comes we can engage in our respective professions and have the time to write blogs and engage in recreational activities. I think that in general the police do a great job and are not given a fraction of the credit they deserve. They put their life on the line every day for people they do not know and for people who are ready to find them immediately guilty of anything the are acussed of. I do enjoy your column but wish you could view the police force in a fair and even handed manner.

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