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Preliminary Hearings in Action

May 10, 2012

2. Law, 5. Pre-Trial

I had two Preliminary Hearings today.  I was wired for sound on both, and, to boot, in front of a Magistrate Judge new to me.  I introduced myself around.  My first impression of the Judge was that he looked both serious and seasoned – a good combination.  And, humorously but with a hint of humbleness on my side, he occasionally reads this blog … so I’ll be nice.

The first case was a joke.  My guy was originally (mis)charged with Robbery, Conspiracy, and some charge that seemed to criminalize not being a Good Samaritan in light of walking unarmed into a gang whomping with deadly weapons on some poor guy (allegedly all around).  The arresting officer revised the Affidavit of Probable Cause to drop the Robbery, but for some reason beyond legal logic kept the Conspiracy and the Thou Shalt Be A Good Samaritan Under Criminal Penalty Law.  Anyway, before we convened, the ADA announced the “good news” that all the charges were being dropped.  That’s what should have happened, and I hoped to achieve at least two of the three charges being dismissed – so the result was obviously good for the client.  The only down side was that I had another afternoon hearing so I couldn’t help my guy after his release from jail … he walked nine miles home.

The second Prelim was substantially more interesting.  My guy is charged with selling heroin on three occasions to a snitch, whose name will not be revealed here but is common knowledge on the street.  It took one phone call by me to describe the situation to a person in the local heroin culture to pop the name.  Plus, oh horrors, the arresting officer practically named him in the APC – something like, “A person that I recently arrested for felonious activity in Columbia County.”  OK, I bite, as I search all the arrests for that A/O in the appropriate timeframe for felony heroin crimes.  The result:  One.  Duh.  Humorously, the guy also has a Facebook page.  Small world.

So the A/O does field testing of the heroin.  Although he didn’t mention the test kit he used in the APC for my guy, he did list it in previous APCs.  So I asked if he used the same one.  Ayep.  I had plenty of research on the kit, including a US DOJ agency report on it.  But then the surprise came.  I asked about his training in the use of the kit – there is certification required.  “No,” he says, “I’m not certified in using that kit.”  Thump.  I immediately thanked my daughter for buying me a tape recorder for my birthday – I’ll have the tape transcribed for use at trial.

I also learned that none of the alleged transactions were visible to the A/O, so everything rides on the credibility of the snitch.  The snitch, btw, is still dealing and using.  So is his mother.  His mother.  Yeah, his mom.  His mom is dealing heroin.   This is so going to trial.

So what did I learn today?  Preparation is everything.  Preliminary Hearings can teach you a lot about witness demeanor.  You need to have several layers deep of information to drag a witness with you to find his level of discomfort.  And that information cannot be over valued when you get the second shot at the same witness at trial.  Well, I kinda knew that already … so it was reinforced.

Now it’s off to trial prep.  It’s a Public Defender case for me.  Any bets on the judge’s reaction to my Motion to Procure a Used Vehicle for the courtroom demonstration on showing how easy it is to hide a mere five bags of heroin in the passenger compartment?

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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