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Friday, March 21, 2014

Preliminary Hearings (or, The three sweetest words)

In my jurisdiction the first time a client will be in front of a judge, with their lawyer, getting substantive information about their case is at the preliminary hearing. Most of the time, attorneys (usually private attorneys, sadly) will waive their clients hearing without consulting them, especially if they are not in jail (more on that later). Not as frequently, the client will demand their hearing and the defense attorney will actually have one. These hearings are usually held for a variety of reasons, none of which is to actually get a 'no probable cause' finding from the judge. While it would be ideal to have a judge declare, in open court, in front of the prosecutor, your clients family and the officers that there was not probable cause to arrest your client, the reality is that it just doesn't happen.  Since 'no probable cause' is not expected in my jurisdiction, preliminary hearings are essentially depositions. They are a tool to get the officers' testimony recorded so they can't change their story later on the day of trial, they are an investigative measure to find out what other evidence or witnesses are out there that you can work on securing now, or they sometimes serve as a reality check for your client who swears the officer/victim/witnesses isn't going to show up in court and testify against them.

Oh but miracles do happen.

I sat and watched a colleague of mine hold a hearing and from the very beginning things were not looking great for the case agent. He showed up 15 minutes late in front of a judge that runs a pretty tight ship.


When the agent arrived he tried to sit behind the prosecutor and just watch the agent filling in for him continue to trip his way through testimony. The judge eventually saw said agent sitting in the gallery, stopped testimony and called him up. After the judge thoroughly chewed out the agent, embarrassed him and pissed him off the testimony continued. It only got worse.

Apparently, the client was involved in a drug transaction with a confidential informant (CI). This informant was searched, their vehicle was kind of searched and their passenger (yes, passenger) was not searched at all. As my colleague confirms the presence of a third person who was not searched by any member of law enforcement before being permitted to participate in a ride-a-long, the judge couldn't contain him self any longer and just had to clarify the series of events for himself:

You met with a CI? 'yes'

You searched the CI? 'yes'

The CI did not have any drugs on them? 'no'

The CI was going to buy some drugs from the defendant? 'yes'

But the CI had another person with them? 'yes'

This person was NOT a CI? 'no'

This person was NOT searched? 'no'

There was no other law enforcement in the vehicle with the CI and their buddy? 'no'

The wire on the CI does not clearly show the defendant handing the CI drugs? 'no'

No lie, this is how the judge looked at the prosecutor:

Strike 2 (

The judge calls my colleague and the prosecutor up to the bench so they can have a candid discussion about what the judge is willing to entertain. Earlier I mentioned that preliminary hearings are waived if a client is out of jail; well, in our jurisdiction if a client is out on bond and they still demand their preliminary hearing, the prosecution can declare 'no probable cause'. For some reason, some people believe this means their case is over with and it goes away. The only thing it is successful in doing is taking the client from under the bond restrictions while their case is pending indictment. All cases, whether there is a probable cause finding at the preliminary hearing or the hearing is waived, proceed to the grand jury for presentment. If the grand jury indicts a defendant that is already on bond for said offense, nothing happens, their arraignment is scheduled and the case continues through its life cycle in the court. However, if the grand jury indicts a defendant who is NOT on bond for the charges, a bond is set and the client is picked up by local law enforcement and re-booked so they can post bond.

Ok, back to the topic at hand. It is safe to say the judge is pissed but he knows if he declares no probable cause the defendant will be released today but just get picked right back up later. The judge wants to know if there is ANY bond amount the client's family can afford to post. No. They state they can't afford to post even a nominally set bond amount. The judge inquires of the prosecution (regarding what I don't know since this is taking place at the bench) but is none too pleased with her response because the next thing I hear is :

"Let me make this PERFECTLY clear, jail is not to be used as a tool to force someone to plea!"

So what's up with the title? I'm glad you asked. The three sweetest words I have heard all week: 

"no probable cause"

Until next time,

Be blessed, be careful, never consent and never confess!