I was sitting in my home office yesterday, diligently preparing for my preliminary hearing that afternoon. The hearing was scheduled for 12:30. Around 10:30 I got a call from a friend of mine who works for the public defender’s conflict office:
“Hi Josh, I’m downtown at the city court building. Do you have a hearing scheduled down here today?”
“Yeah. It’s scheduled this afternoon. Why? Is there a problem?”
“There might be.”
My friend was in the courtroom when the court staff called two cases. One of the defendants hadn’t appeared. The other defendant, my client, was incarcerated. Before hiring me, my client had applied for the public defender, and so my friend had his name on her list. But she had it on her schedule for the afternoon session, not the morning session.
She told the court staff about the problem, as well as the prosecutor. The court staff told her that the case was in the morning pile, so it must be scheduled for the morning. The hearing commenced, and the court held the charges against my client. After the hearing, my friend saw my name on the DA’s file, listed as the attorney of record. That’s when she called me.
After filling me in, she summarized the hearing and told me she would get the transcript. It sounded like she did a good job and nailed the officer down to his testimony. But now I had my client’s family meeting me at the courthouse at 12:30 for a hearing they thought would happen. I hoped it still might. It was still a little before eleven, so I threw on my suit and raced downtown.
On the way downtown I called the courthouse and spoke to the clerk. In fact, it was the same woman I had spoken to a few weeks ago. It’s a court I’m unfamiliar with, so I had called with some questions about local procedures. She remembered me, and I filled her in on the situation. Confused, she pulled up the electronic docket. As I knew, the case was listed for 12:30. My appearance was listed as the attorney of record, along with a phone number.
“That’s strange,” she said. I could tell she was still reading. I assumed she found the same thing I did when I checked the docket before I left. “It says here the case was rescheduled to 8:00 a.m., but that happened this morning. Also, you were moved to inactive counsel.” I asked who makes those changes, and she told me it is the staff person sitting in the courtroom with the judge.
So, by the time I got to the courthouse a little after eleven, I knew a few things had happened. In order to have the hearing, the court official had to pull up the electronic docket, see my name on the file, and see that it was listed for 12:30 p.m. Despite this, he or she simply changed the time and allowed the court to proceed with a hearing without mentioning anything to the judge. When I arrived, I spoke to the woman from earlier who pulled the physical file. Right on top was the issue. The form rescheduling the hearing clearly listed “8:00 a.m.” Unfortunately, that form doesn’t go to anyone. The form that went to me, my client, and my client’s family said “12:30 p.m.”
As a former law clerk, I know these things happen. They shouldn’t, but they do. Clearly, it was a clerical error. Regardless, now I was in a bind. One of my clients had retained me to conduct the hearing. I had prepared for the hearing, and planned to address the lack of merit to the case, as well as the high bond set on my client. After speaking to the DA, she would not agree to a new hearing. She argued it would not be proper.
I managed to get the clerk to put my file on top of the pile. I explained, as succinctly as possible, the situation to the judge there that afternoon. He agreed with the DA. “Let’s send this case up clean,” he said to me and the prosecutor. He didn’t want to get involved in this procedural snafu.
I had to explain the mishap to my client’s family. Luckily, I was angrier than they were. I told them they could roll the fee into the next court appearance, which they were fine with.
It’s one thing to lose at a hearing. That happens all the time. But to lose the opportunity just felt wrong.