Initial Appearance: Bound Over

So, I’m going to go ahead and explain the joke, because I make obscure lawyer jokes that no one gets. The Initial Appearance is a part of the criminal process, as the name implies it’s when the defendant makes his initial appearance before the court. Yesterday (as I write this on Wednesday night), I made a different sort of initial appearance. That’s right, after four full weeks of pestering attorneys, prepping cases, sitting at counsel table, and listening to defense counsel ask for continuances and to judges issue bench warrants for defendants who failed to appear, I finally spoke in court, on the record, and didn’t get kicked out afterwards! [As a note, everything I discuss below happened in open court, and is a public record.]

It was a prelim for a possession of a stolen vehicle case. I was originally supposed to take two witnesses and do a drug case all on my own, but, of course, that case got continued. But my intern buddy happened to have another prelim in the same courtroom on the same calendar, also with two witnesses. He was kind enough to give me one of them, so I hurriedly read through the file, looked through the notes he had prepared, and chatted with the attorney about them. The case got called, and his witness went first. Everything went smoothly, there was cross, and then it was my turn. Everything in my direct went pretty smoothly, but then on cross, the defense found out about a recorded interview that they didn’t have the transcript for. And because they didn’t have the transcript, they asked for a continuance on the grounds that they weren’t able to do an effective cross. So the case got continued for the following day.

This morning, being the ambitious intern that I am, I had asked for and prepped a misdemeanor trial/felony prelim. I was going to take one of two witnesses, and my supervising attorney would take the other. That defendant pled, obviously. So I’m back to just the continued prelim from the day before. The plan is to finish up cross, I’ll do any necessary re-direct, the attorney will make arguments, and then we’ll find out what happened.

So, the defense attorney is chatting with his client, and it’s taking quite a while. Finally, the case gets called; the prosecution is ready, the defense is ready. But wait, the defense attorney wants to make a record first. His client wants to hire private counsel, instead of using the public defender. He’d like a continuance so that he can finish up the prelim with private counsel. The prosecutor is opposed, because we’ve got our witness outside, waiting to testify, and we’ve now made him come in two days in a row. The prosecutor mentions that she’s made a new offer that won’t be available later. While she’s stating that to the court, the defendant interrupts saying “I’ll take it.” There’s a brief recess so that the defendant can confer with his attorney. After the recess, the public defender says that his client is willing to accept the plea. The prosecutor asks for a full plea canvass, to make sure that the plea is voluntary, because of the somewhat unusual circumstances.

The first question goes fine, the defendant answers affirmatively. The second question, there’s a long silence. An internal struggle plays out on the defendant’s face. He’s visibly torn, and shifting from side-to-side. After an eternity (20, 30 seconds?) he says he can’t do it. And just like that, the prelim is back on. (I came so close to getting another one called off. So. Close.)

The witness gets called, and cross examination goes pretty well. I get up for my direct, and everything’s fine. The defense isn’t going to put on any witnesses. We reserve for rebuttal, and the defense argues that we didn’t meet our burden for one element. We rebut, citing case law. The judge wants a full case cite, which we don’t have prepared. Two interns and two attorneys frantically search for cases on their phones. The judge begins speaking, and everyone listens with bated breath, because we weren’t able to pull up any cases in the brief moments he was reading the statute. And everyone on our side of the courtroom breathes a sigh of relief – he found probable cause, and the case is getting bound over to District Court. Then the judge asks if we, the interns, have time to hang out afterwards and chat. Interns do not tell judges “No.” It was actually really nice – the public defender hung around too, and gave us some feedback. The clerk told us that she’d email us copies of the transcript. We fist-bumped and had a celebratory lunch. (And made plans to show up to more courts and get more cases bound over and do misdo trials and sentencings. Goal: Spend (almost) every morning in court for the next five weeks.)

Then I spent the next 5 or so hours on my evidentiary scavenger hunt, during which I discovered a New Jersey statute banning the  sale of “Yo-Yo Waterballs,” defining said Yo-Yo Waterballs, and providing for confiscation by law enforcement. I asked some friends from Jersey about it, and apparently it is a traumatic topic, and bringing it up just rubs salt in the wounds. I may or may not have ruined someone’s birthday. Whoops.

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