A couple of months ago, Carol D. of Public Defender Revolution told the story about a judge who tried to force her to trial on a case when she wasn’t ready. This put Ms. D. into a very difficult position. She couldn’t put her client’s interests at risk by proceeding unprepared to trial. She therefore had no choice but to refuse the judge’s order to proceed, thereby subjecting herself to the possibility of being held in contempt of court.
I suppose there are rare occasions in which a judge could rightfully deny a request for continuance in that type of situation. The judge might find, for example, that a particular lawyer was repeatedly and unethically seeking to do nothing but delay. But in most situations it is not in anybody’s best interest to proceed with a trial when defense counsel is not fully prepared. As D.A. Confidential put it in a comment to Carol D.’s post, “[s]ome people may think prosecutors would love to try cases against unprepared defense lawyers, and maybe some do. But that’s not my feeling. Not only, as you point out, can those cases get thrown back on appeal, but more to the point we’re supposed to be in the business of doing justice. Shooting fish in a barrel ain’t justice.”
One of the things that interested me about Carol D.’s post was how she responded when the judge denied her request. She did not go immediately to her supervisors at the public defender’s office where she works, as I would have expected her to do. She went instead to a listserv for moral support and advice.
I probably shouldn’t speculate on the level of support Carol D. receives from her supervisors. I get a sense from things she has said that her blog may already have gotten her into hot water where she works.
But I have to say that her reaction surprised me, and there is nothing that prevents me from moralizing in general about the level of support she SHOULD have received. It is not easy being a public defender. Sometimes you feel that everyone hates you – the prosecutors, the judges, the police, the witnesses, the court staff and, yes, even the clients. Someone has to have your back.
One of the things I miss most about my days as a public defender was the camaraderie with other defenders. And I was also very fortunate, where I worked, to have supervisors who supported us, who did have our backs. Yes, you could complain about a particular supervisor or two. But when things got messy, they were behind us. If any one of us ever found ourselves in the same position as Carol D. did on that occasion, the first person to the courthouse would have been Charlie C., the First Assistant and second-in-command, followed by the Chief Defender herself. And they didn’t come to apologize to the judge for our poor behavior. They came to join the fight. And they were good fighters.
Being confident of this support helped our morale. More importantly, it stiffened our spines. Being held in contempt was not something any of us feared. Hey, it made a good story and, if anything, served as a badge of honor, proof of the things we would do for clients. And because the judges knew this, their threats often fell flat. Okay, Your Honor. You want to hold me in contempt? Go ahead. Make my day. People talk about playing “trial chicken” with the prosecutor. This was “contempt chicken” played with the judge.
If you thought by the title of this entry that I was going to describe my own experience with being held in contempt of court, I am sorry to disappoint you. I have never had this honor (although it sure did make things easier when I was filling out my applications for admission to the D.C. and Virginia bars).
The best thing I can claim is to have been barred by one particular judge in Philadelphia from ever again appearing in her courtroom. My client was charged with aggravated assault, which is a felony. It was a bench trial, meaning that the judge was going to be making the determination as to guilt. While my client was being led out from custody to take a seat beside me, the judge told me I shouldn’t sit too closely to him because he “seemed to be very dangerous.” It was such a stupid thing for her to say, I chuckle even now when I think about it.
I asked for a recusal despite her warnings, and was relieved from ever again having to appear in front of this judge. And, best of all, my colleagues were very envious.
But I did ask one of my colleagues who had been taken into custody pending contempt charges about her experience. “What did you do during your time in the holding cell,” I asked her?
“Oh, I just sat there,” she said. “The sheriff was very polite and very solicitous. He mostly seemed embarrassed by the whole thing.”
“And I knew,” she added, “that Charlie was going to have me out of there very soon.”