Wednesday, December 28, 2005

How Do I Sleep At Night?

That's the question that one of my court clerks posed to me last week. Here is the background. About three weeks ago, I was appointed to represent a man who was incarcerated on a probation violation stemming from a domestic violence assault case. When I looked at his file, I discovered that the motion to revoke his probation was not filed until one day after his probation expired, therefore the court had no jurisdiction to revoke his probation. Now, this was a rather unique situation because for many years, the probation department here and the court clerks were under an incorrect assumption about when an individual's probation expired. For example, if someone were given one year of probation on December 25, 2004, they believed that the probation expired December 25, 2005. This never made sense to me, since December 25, 2005 would clearly be the first day of a second year of probation, and not the last day of his one year of probation. Nevertheless, many local judges agreed with this assessment, and so prosecutors and probation officers would commonly file motions to revoke probation on what they thought was the last day of an individual's probation. Everyone agrees that if a motion to revoke is not filed until after probation expires, the court has no jurisdiction to revoke, extend, or modify probation. The disagreement was when probation expires. Well, in November of this year, our local court of appeals issued a ruling definitively stating that probation expires on the day before the anniversary date of the imposition of probation. I was right. And now, I had the binding case law to prove it.

So, back to my case. I brought the issue of the untimely filing of the motion to revoke to the judge's attention. She was not aware of the recent case. Before taking any action on my request to discharge the defendant from probation, she requested a copy of the case. I happily furnished her a copy of the case. She read it, and realized that she had no choice but to discharge my client from probation. Now, this was very upsetting to the probation officer. He told the judge that the victim in the case was afraid of further violence to my client. Although the judge certainly sympathized with that, she did not have any choice but to follow the law. Still, she took the time to have my client brought in front of her, and urged him to have no contact with the complainant in the case because that would probably just lead to more trouble for him. Then, my client was free to go.

So last week, I had another case with the same problem. The motion to revoke was filed one day late. The judge was already gone for the holidays, and my client was being held on other charges that would keep him in jail a little longer anyway, so I placed a post-it note on the file asking the judge to discharge probation. Well, one of my court clerks saw the note, and decided to tell me that I was wrong about the law. I told her that I was correct, and the judge was aware of this, and she could handle it when she got back. She told me that until I came into that court, this had never been the law. I informed her of the recent case, and that I had provided it to the judge on a previous case. That's when she told me that in that previous case, after my client's release, he went to see his ex-girlfriend and broke her nose. Now, I have no idea if this is true. I told the clerk that if he had done that, then he would have to answer for it in court, but that it did not change my obligation to follow the law. Then, she laid it on me. "I just wanted you to know that when you try to sleep at night." I told her that I slept at night just fine knowing that I did my job, and then I walked off. Perhaps I should have asked her how the judge slept at night, knowing she had signed the order to release my client. Perhaps I should have asked her how the probation officer slept at night, knowing that he had blown his chance to revoke my client's probation by filing the motion one day too late.

The truth is that I sleep at night very well knowing that I am doing my very best to represent the clients who the court charges me with representing.

Sweet dreams, all you public defenders out there. Sweet dreams.


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