The Defendant Has Left The Building
by Jamison Koehler on April 22, 2010
Whenever a judge dismisses a case for lack of prosecution, the best advice to a client is not to stand there celebrating. It is to get out of the courtroom and out of the courthouse as quickly as possible.
I was sitting in court yesterday, waiting for my case to be called, when the judge dismissed another lawyer’s case for lack of prosecution. The only witness for the government had failed to appear for the call of list at 9:00 am. When the judge recalled the case at 10:30 am and the witness was still not there, the judge threw out the case with a heavy sigh and a disapproving look toward the prosecutor.
The defense lawyer was hustling her client out the door when the witness finally walked in.
“Your Honor, Your Honor!” the prosecutor cried. “The government moves to vacate the dismissal!”
Heads down, the lawyer and her client kept moving.
“Your Honor!” cried the prosecutor.
The Judge called out for the defense lawyer’s attention but by this time the lawyer and her client were out in the hall and still moving toward the escalators. “Send someone after them,” the judge ordered the prosecutor, and an intern for the government ran out into the hall after them. The intern reportedly reached them at the bottom of the escalators, but they were still moving, out through the courtroom doors and out onto the street.
The intern was still panting when he came back into the courtroom. They’ve gone, he announced. The other defense lawyers and I, still sitting in the courtroom, looked at each other and smiled. This lawyer knew what she was doing.
Alas, the judge made a few phone calls, and a half an hour or so later the lawyer and her client reappeared. But they still had that defiant look on their faces.
The clerk recalled the case, and the judge asked the prosecutor for the legal basis of her motion to vacate.
“It would be completely unfair,” the prosecutor asserted. “The witness walked in as they were leaving. It was just two seconds after you dismissed the case.”
“Yes,” the judge replied. “I understand what happened. I was, if you will recall, sitting right here. I was asking for the legal basis for your motion.”
The prosecutor consulted briefly with a colleague and then returned, with brightened face, to address the judge. She then repeated the same argument as before.
“Very well,” said the judge, and turned toward the defense lawyer. “And you, counsel? What is your argument?”
Now, for the first time, the defendant’s lawyer also seemed to be at a loss. I was sitting in the front row with two other defense lawyers, and we tried to mouth the words “no jurisdiction” to the lawyer. But we couldn’t get her attention. Finally, one of my colleagues got up and pretended she had something to give to the clerk at the judge’s side. On her way back to her seat in the gallery, just as she walked behind defense counsel, she whispered under her breath: “No jurisdiction, no jurisdiction.”
Defense counsel brightened. “Your Honor,” she said. “As soon as you dismissed this case, this court lost jurisdiction to hear any further motions by the prosecution.”
There was a judge in Philadelphia who would, from the bench, telephone a more senior colleague, also sitting on the bench, whenever a question came up for which she didn’t know the answer. Not this judge. “I see,” she said. “I am going to have to think about this one for a little bit. I’ll recall it in a half hour or so.” Of course, you knew that the judge would soon be calling a brief recess and that during this recess she would either be calling a colleague and sending a law clerk to find out the answer for her.
My case was called next so I never learned how the judge finally ruled. But I suspect it was for the defense.