The “Almost Went To Trial” Blues

by Jamison Koehler on December 1, 2010
Jefferson Memorial

You are wearing one of the good suits you save for trial.  Your trial notebook is at your side. You got up early to exercise, and now you are feeling rested, relaxed, and confident.  You don’t go to trial as a private practitioner nearly as much as you did as a public defender or prosecutor, and you savor these moments now more than ever.  They reaffirm your belief – each time as if anew — that you do the most exciting thing in the world.  During a break, the prosecutor says something obnoxious about one of your pre-trial motions and now you are really pumped.  You can’t wait to see that smug smile disappear from his face.

The judge has had you sitting around all morning while other cases are resolved.  Now it is just past 1:00 pm, and your case is the last one on the docket with hours of court time still left in the day.  There are only a handful of people still sitting in the gallery:  the government’s witnesses and some guy in jeans who appears to be just observing.  Everything has aligned perfectly:  you know that, after seven months and multiple continuances, the case is finally going to go today.

The clerk reads out your client’s name for the third or fourth time that day, and you and your client approach the bar of the court yet again.  This time you bring your trial bag with you.  You are thinking you won’t be returning to the gallery until the battle is over.

The prosecutor is again complaining about the number of motions you filed in this case:  a motion to suppress, a motion to compel, and a motion to dismiss on the basis of discovery and Brady violations.  This is a trial court, the prosecutor says with a smile, not a motions court. You resist the urge to respond:  there will be plenty of time to put this guy in his place.  Instead, you smile at him patiently as if he were a petulant child.

The judge is cranky.  She is going to have to rule on these motions before the trial begins.  She doesn’t understand why the two of you haven’t been able to work out these things in advance of trial:  Why can’t we all just be reasonable?  It’s what you are thinking as well. You see yourself as about the most reasonable person in the world.

The judge is talking about taking a lunch break, and that’s okay with you.  It will give you one last moment to talk with your client.  Review your notes.  Take a bathroom break.  Straighten your tie.  Get your game face back on.

The judge glances again at the motions in front of her and it is at that point, you realize later, that she changes her mind.  Your motions raise a lot of thorny issues, she says in your direction.  I’d like to hear some argument.  I’ll also need some time to think about things.  I am in training for the rest of this week. After that, there will be a different judge for this room.  I can’t start a trial I won’t be able to finish.

You know this judge is hostile to the government on many of the issues you raise, and you want her to rule on the motions. Why don’t we argue the motions today, you suggest, and, then if necessary, re-schedule the trial for later?

But the judge has already made up her mind.  So you make your speedy trial objection and try to be gracious, and the next thing you know your client is signing his service to return for some time in March – just inside the speedy trial deadline — and the two of you are stepping back from the bar and heading out into the hallway.

Your client looks relieved, but all you can feel is the adrenaline draining out of your body.  All day long you have suppressed thoughts of everything else to concentrate on this trial.  Already you are thinking about the phone calls you have missed during the day and wondering how long it will take you to get back to the office.

You console yourself with the thought that the government may not be able to get its witnesses to return for the next listing. This is not about you, you remind yourself.  There is always a risk of losing at trial, no matter how strong the case.  And if the case is dismissed instead, what are the odds that the government would decide to re-arrest on a case so fraught with prosecutorial error?

You and your client head down the hallway toward the exit.  Looking back, you see the prosecutor coming out of the courtroom with his witnesses and you realize, with a pang of regret, that there will probably be another prosecutor handling the case at the next listing, the fourth prosecutor assigned to the case since your client was arrested last spring. Someone else, you think, is going to have to wipe that arrogant smile off this guy’s face.

3 Comments on “The “Almost Went To Trial” Blues

  1. You say “arrogant,” I say it’s the smile of the right and the just. But then I would, wouldn’t I?!

    Seriously though, I can imagine that must be frustrating. We almost always know the Friday before whether a case will be tried, I can’t remember the last time one that was scheduled fell through on the day of trial. My judge, at least, is very good at keeping his schedule straight and doesn’t like to mess about with witnesses and jurors.

    I feel your pain, old chap. Move to Austin, you’ll like the practice here much better. 🙂

  2. Mr. Pryor:

    I keep hearing good things about Texas. It does sound pretty organized and civilized there.

    Incidentally, congratulations on DAC’s nomination as one of the ABA’s top legal blogs. Well-deserved. You got my vote.

  3. Should you count it as a “victory” if the witnesses don’t show up? What if the reason they don’t show up is that your client scared or bribed or cajoled them into not coming to court?

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