On going to Court

 

Lawyers are supposed to like going to Court.  But this is mostly pretend.  Too many variables affect trial practice.  If you want to control the outcome, then, you should avoid court.  A case can go awry because of a clerical error, a judge annoyed at the loss of his favorite basketball team the night before, a slip of the tongue, something that happened in a previous hearing or that might happen in a later proceeding.  It’s always safest to resolve disputes rationally, on the basis of phone calls, and generally accepted legal principles with differences split down the middle.  This sort of logical, predictable practice is best implemented from the safety of your office, on the basis of clearly written proposals and counter-proposals reflecting a meeting of the minds – if not the minds of plaintiff and defendant, at least, agreements made lawyer to lawyer.

Nonetheless, I was compelled to appear in Court in support of a petition to restore my client’s firearm and ammunition rights.  Seven years ago, the petitioner had been convicted of felony drug possession, the last in a long series of legal troubles arising from the young man’s alcoholism and drug addiction.  After both in-patient and halfway house treatment, my client had been clean and sober for the previous eight years, was fully employed, and had accepted responsibility for his offenses.  His two felonies were victimless, drug possession charges with driving while intoxicated and he had not committed any crimes of violence, least of all engaged in any bad acts involving guns.  So I drafted a petition to the Court that had previous convicted my client for his felonies in the county, filed it for a hearing with service of the pleadings on the county attorney, the county sheriff, and the department of corrections (probation).  The Judge set a hearing and, with my client in tow, I went to the Courthouse to appear for the proceeding.  This was the sort of minor hearing in which I had participated many years ago, when I was 25 or 26, as an attorney just out of law school.  At the end of my career, after 46 years of practice, it seemed that I was reverting to the sort of work that I had done at the very beginning: low profile hearings with little at stake, important to the client, of course, but low-paying and insignificant to my firm.  We begin in diapers and, so, it seems, end in diapers as well.

At the Courthouse, I trudged up a flight of stairs, disdaining to use the elevator, although, perhaps, that would have been easier for me.  At the top, a couple of sheriff’s deputies were manning a threshold with a metal detector.  (In the old days, we used to walk into the Courthouse without being screened in any way and the judges were accessible in open offices along the public corridor.  Judges kept their doors open except during proceedings conducted in camera and, if you wanted to get an ex parte order signed, something like a petition for appointment of a trustee in a wrongful death case, you just went down to the courthouse in the mid-afternoon – the morning’s hearings were over – and the judges were in their offices, often chatting with their court reporters and you just announced yourself at the door, walked in and procured the necessary signature.  Times have changed.)  Two deputies were at the metal detector, less for security than for company since the job was slow and very dull.  One of the deputies recognized me and let me through without screening – I was wearing suspenders which would undoubtedly have triggered the machine and resulted in a pat-down otherwise.

The courtrooms are accessed by long hall running the length of the building on its second floor.  As I walked down this long hall with my client (he had been waiting for me in a bay between courtrooms), I heard a high-pitched girlish lament.  Approaching me, I saw a man wearing a tee-shirt and jeans gesticulating to a weary-looking social worker.  The social worker murmured something to the man who was sobbing. The corridor was otherwise empty. 

“I can’t believe it,” the man whined.  “The last movie I saw with her was Pennywhistle, that was the last movie, just a couple weeks ago and, now...”

It seemed odd to me that the man’s obvious and histrionic distress was focused on a horror movie, a spin-off from Stephen King’s It, featuring a sadistic and diabolical clown.

The social worker tried to soothe the man’s wounded feelings.  She murmured to him again.  He began to sigh and shrug his shoulders and sobbed in a loud voice.

“I wondered what happened there,” I said to my client.

He shrugged: “I hope it doesn’t happen to me.”

The indignant man continued to groan and sigh as he passed us.

We reached the bailiff’s desk outside Courtroom #2 where the hearing was scheduled.  We were 20 minutes early.

A girl who patrols the courthouse halls was talking to the middle-aged lady seated at the  desk on which a print-out of the day’s hearing schedule lay.

The girl said: “Well, you should be nice.  If you want people to rule in your favor, you ought to be nice.  Not the other way.”

I said to the two women: “You know I am always nice.”

The girl said: “Oh yes, we know you are.”

The middle-aged woman who worked as a bailiff recognized me and said: “What do you think of the news?”

“What news?” I asked.

“The news about guitar,” she replied.

“What guitar?’

She had a mournful expression on her face: “It’s Pete Hegseth, Pete Hegseth and guitar.”

Pete Hegseth is Donald Trump’s corrupt and dimwitted Secretary of Defense – now dubbed Secretary of “War” because the administration, in an effort to demonstrate maximum (theoretical) belligerence but without taking any real risks, has re-named the defense department as “the department of war.”  Trump thinks it sounds better and more lethal.

“Hegseth?”

“Yes,” she said.  “Hegseth and guitar.  Guitar is going to have a base, you know, in Idaho, to store Trump’s plane.”

Then, I understood that she was saying “Qatar”.

“That seems crazy,” I said.

“Worse than crazy,” she replied.  She seemed disappointed.

“We were waiting to see what you had to say about this.”

“Crazy,” I said not knowing exactly what she was talking about.  

(Hegseth apparently announced that he was going to allow Qatar’s air force to use a military base in Idaho for its operations.  The jet that Qatar donated to Trump as a gift would be housed on that base as well as a number of Qatari F-16 fighter jets and two- or three-hundred troops from the Arabian nation.  This plan to establish a “Muslim” military base on American soil met with wide-spread indignation and I don’t know the status of the proposal at this writing.) 

Courtroom 2 was open and, so, with my client, we entered the court and took a seat in the second pew from the back.  It was warm in the courtroom and airless.  

A hearing was in progress.  I saw the back of a man in a bright orange jump-suit seated with a public defender at counsel table.  Two stern-looking sheriff’s deputies, both of them bald and overweight, loomed over the table where the little defendant with slumped shoulders was sitting.  The prosecutor was at a parallel table facing the judge.  She was wearing funereal black and scowling.  The defendant had some kind of hearing apparatus clamped over his head with a silver bulb in his ear.  

The Judge said that it wasn’t the defendant’s fault that the State had not yet accomplished an evaluation with recommendations.  

“In light of the competency situation,” the Judge said, “there is literally nothing we can do here.”

He paused and shuffled his papers: “I don’t think it is fair or reasonable to just warehouse this defendant.  That’s unjust.  So I am going to order his release with conditions.”

No one responded.

The Judge, then, listed a long list of conditions for release: no alcohol, no drugs except prescription medications, no contact with witnesses or the victim, don’t go into bars, report weekly to corrections, and so on.

When the Judge was finished, he asked the defendant if he understood the conditions.  The man in the orange jump-suit nodded his head and said “yes, your honor.”  The hearing was evidently complete and the dour prosecuting lawyer scooped up her papers and headed for the door.  One of the fat sheriff’s deputies deftly plucked the headpiece from the defendant’s skull.  He stood up and the other deputy took his arm and escorted him out the side-door.  The incompetent defendant didn’t look very menacing.  His face was bland, expressionless, a little stunned.  He walked with a medicated shuffle.  His lawyer patted him on the shoulder and, then, darted out of the courtroom.  The Judge called my case.  A tall, gaunt fellow from the County Attorney’s office was present and walked up to counsel table.  Apparently, the County Attorney intended to oppose my client’s petition.

From the outset, there was a procedural glitch.  I had submitted the petition in the court file on which my client had last appeared back in 2018, seven years earlier.  But that court file didn’t involve any felonies.  Since gun rights are terminated in felony criminal cases, my filing was technically deficient even though I had been careful to identify (by caption and file number) the two previous felonies.  I was under the misapprehension that the 2018 charge was a felony, an error that would have been immediately obvious to someone who appears in criminal court frequently but obscure to me.  (I haven’t appeared in criminal court since an arraignment in Mankato in 1990; prior to that time I tried a number of criminal cases including a felony vehicular homicide but had abandoned the practice: my office is Austin’s city attorney and is conflicted out of cases involving any municipal police.)

I apologized to the Judge and said that I would re-file under the two correct felony court file numbers.

“I have spelled out the felonies in the text of the petition,” I said.

“Yes, this is true.  I don’t see any harm in proceeding,” the Judge said.  He asked the County Attorney if he objected.  He did not.

“I’ll refile on the other two cases,” I said.  “Nunc pro tunc.”

Nunc pro tunc is fun to say.

“We want to get this resolved ahead of deer-hunting season,” the Judge said.  This remark was a good sign, I thought.   

I told the Court I would call my client to provide testimony proving his Petition. “That’s how we usually do it,” the Judge said.

My client went to the witness box, was sworn, and answered my questions.  The young man from the County Attorney’s office made a desultory effort at cross-examination but, ultimately, only emphasized the points that I had made in my direct.  

A day before the hearing, the County Attorney had disclosed the existence of a 2003 charge in Iowa’s Mitchell County just across the Minnesota border from Austin.  I had not been aware of this charge since my record’s search had been limited to Minnesota courts and proceedings.  The Iowa offense involved my client brandishing a shotgun in some kind of confrontation.  The County Attorney represented that the charge had resulted in a felony conviction.  But this seemed contrary to the Court Order entered on the charge, a brief scribbled note on a sheet reflecting the minutes of proceedings before the Judge.  I had looked up the Iowa statutes under which my client had been charged and, further, researched the law on which the conviction was entered.  This turned out to be a complicated task: the law had been changed by legislative revisions three times since 2003 and the current statute bore little resemblance to the enactment as it existed in 22 years ago.  Ultimately, it became apparent that the conviction was for a misdemeanor only.  I prepared an exhibit marking the revisions in the both the statutes on which charges had been based and the enactment cited in the conviction.  I told the Judge that I was prepared to show that the charges in Iowa, although they had been low-level felonies, had been pled to a conviction for a gross misdemeanor.  The Judge seemed uninterested: after all, this involved Iowa and not Minnesota.

“May I approach?” I asked.  I said that I wanted to offer the exhibit marked to show the various revisions in the statutes since 2002.  “It’s sort of an archaeological exercise,” I said.  “I’d like you to see my work since it took me quite a while to research the 2003 law and its subsequent changes.”

The Judge nodded but asked if I had earlier submitted the proposed exhibit to the MNDES digital system.  (“MNDES” is pronounced: Minn deeze.)  No, I had not made this digital filing.

“Well, all exhibits have to be submitted to the system a day in advance of the hearing,” the Judge said.

“Then, I will not offer the document as an exhibit, but for illustrative purposes only,” I said. 

The Judge told me he would receive the document.  I handed a copy to the County Attorney and, then, to the Judge.  He glanced at the document without much interest.  I could see that he had already made up his mind as to the outcome.  I rested.  The County Attorney had nothing more to add.

The Judge asked me to argue the Petition.  I made a brief statement.  The County Attorney said that it was office’s policy to argue against restoration of gun and ammunition rights in all cases.  I didn’t see how this was an argument; it seemed to me to be more on the order of an apology.

Ruling from the Bench, the Judge explained his decision that my client’s gun and ammunition rights should be restored to him.  He said the felony offenses for which my client had been convicted were drug charges, that is, victimless crimes, and that my client had been successful in maintaining sobriety for more than seven years.  He also cited the 2nd Amendment to the Federal Constitution, the right to bear arms, and said that he thought that there may be a presumption in favor of restoration of gun and ammo rights in this situation.

That concluded the hearing.  

I walked with my client to the metal detector and the two sheriff’s deputies who were arguing about football.  My client went to the locker nearby and extracted his wallet and pocket knife.  I walked down the steps, avoiding the elevator, because I wanted to demonstrate something like vigor for anyone who might be watching.  On the sidewalk, in front of the Courthouse, I shook hands with my client and said that I would forward the Court order that I had prepared and submitted to the Judge after it was signed and put in the message box for my law firm – this would happen, I presumed, in a few hours.  It was sunny outside, with strong shadows cast across the pavement.  The edges of downtown were all torn up with construction, some of the major thoroughfares reduced to moist trenches in the earth with idled machines parked in the dirt, barricades, and deep craters around utility installations.  Stoplights cycled at empty intersections.  The central part of the town was fortified by the construction on all of its sides.  I went to my car, found a way out of the roadwork and returned to my offices.

Here is what happened in 2003: my client, then, was living at his father’s house in St. Ansgar, Iowa, Mitchell County’s county-seat.  Some young men from Riceville, a town 15 miles to the east on the county line between Mitchell and Howard counties, were drinking at the tavern on Main Street and playing pool.  At that time, there was, then, some sort of rivalry between the two little towns (St. Ansgar pop. 934; Riceville pop. 834) and this led to a fight.  The barkeep broke up the fight and threw the young men out of his tavern.  The boys shouted threats at one another but kept their distance – the local cop was watching.  My client returned to his father’s house, followed by the Riceville kids.  They besieged the house and threw some stones.  My client opened the gun cabinet and took out his dad’s shotgun.  He, then, went out on the front door stoop and waved the gun over his head.  He didn’t pull the trigger.  The Riceville contingent backed away, retreating to their car.  They drove into town and made a complaint to the policeman who, then, filed a report.  A week later, the Mitchell County Attorney charged my client with various gun offenses.