An Officer of the Court

May 10, 2009
/ Author: Rick

First things first:  I don’t write as much on this blog as I had hoped, or as I probably should.  My original intent was that I’d write about “regional” (i.e., within the Fresno, California area) issues or happenings on this site; most of my writing happens at Probable Cause: The Legal Blog with the Really Low Standard of Review. (Judges, at least, should get the joke in that name; even a few attorneys might.)  This isn’t an apology: I’m saying this because if you’re here wondering why the blog isn’t updated and you’re just really thirsting for something new, try the other blog.

Regardless of where I post my articles, I’m always an officer of the court.  (People v. Superior Court (Rishwain, Hakeem & Ellis) (1989) 215 Cal.App.3d 1411, 1413 [264 Cal.Rptr. 28]; Tejeda v. Blas (1987) 196 Cal.App.3d 1335, 1341 [242 Cal.Rptr. 538]; Leversen v. Superior Court (1983) 34 Cal.3d 530, 537 [194 Cal.Rptr. 448].)  I cite cases for that because some prosecutors and law enforcement officials disagree.

Even courts seem to disagree at times.  I’m still learning the rules, but near as I can tell it works like this:  When they want me to do something I’m resisting, I’m reminded that I’m an officer of the court.  The rest of the time, I’m a criminal defense attorney, which means I’m not to be trusted.

At least this is how I learned it right before my first trial.  Immediately before, in fact.  Numerous times, I’d had a judge refer to me as an officer of the court when asking me to do something that I thought was contrary to my client’s interest.  “I’m asking you in your capacity as an officer of this court,” the judge would say.

My first trial as an attorney in my own right — as a student, I’d sat second chair in a special circumstances murder trial, handled a complete traffic trial and argued before the Fifth Appellate District Court — was a juvenile case.

The way things work in Fresno, we start out the morning of trial at the Juvenile courthouse.  If the trial is a “long-cause trial,” meaning it will last more than a couple or three hours, and if the attorneys are all ready to proceed, we get sent downtown to the main courthouse.  Someone has to carry the file from the Juvenile Court to the main Court.

As it turns out, the Deputy District Attorney had stepped out of the room for a moment.  The judge asked where he was, because he wanted “someone” to carry the file downtown.  I offered to do so “in my capacity as an officer of the court.”  There was actually — I kid you not — a little bit of a snicker.  I was thanked.  And the Deputy District Attorney was located and given the file.

Last week, the Fresno Bee carried a front-page story about a “new” problem with attorneys — well, with defense attorneys, but not with prosecutors — at the Madera courthouse.   It seems that, without probable cause, defense attorneys are now being required to remove their belts before they can enter.  The rationale behind this is allegedly that it’s meant to increase safety within the courthouse.  How removing a belt does that, I’m not exactly sure.  But that’s their story and apparently they’re sticking to it.  Although (according to the Fresno Bee story) they’re not really sure whose idea it was.

And although the only recent attack on the courthouse in Madera that anyone can remember came from a prosecutor, it is only “regular” attorneys and not prosecutors who are subject to the search.  Prosecutors, dangerous as they have so far proven to be, actually literally have the keys to the courthouse.

Anyone who has read my blog before knows this sort of thing isn’t really new.  In Fresno County, defense attorneys are routinely searched prior to entering the courthouse; prosecutors, law enforcement and other known “good guys” are usually just waived through.  (In fairness, of late I’ve noticed that some deputies will also waive their unconstitutional right to warrantless searches of defense attorneys if they know them well enough.)

The problem of making access more difficult for defense attorneys isn’t limited to the courthouse.  And, frankly, this highlights the problem of allowing law enforcement types — whether private security, sheriff’s deputies, probation officers, or judges — to have complete and final say over who gets access.

In Tulare County, for example, they purport to have a rule that bars defense attorneys from visiting prisoners unless the defense attorney in question is the “attorney of record.”  The attorney of record is the attorney whom the court knows is representing the accused person.  This is almost always a public defender, at least in the beginning of a case.  However, some people will then scrape, beg, or borrow money to hire a private attorney.  Usually (but not always) the attorney will want to speak to the potential client prior to being hired.  Where the “attorney of record” rule is enforced — and even in Tulare County, it is not enforced at every jail, or even all the time at a single jail — this will not be possible.  You cannot become the attorney of record until you have been hired and recognized as the attorney of record by a court; you cannot visit a potential client, in other words, until he is an actual client.

In actuality, this is illegal.  California Penal Code section 825, subsection (b) states:

After the arrest, any attorney at law entitled to practice in the courts of record of California, may, at the request of the prisoner or any relative of the prisoner, visit the prisoner. Any officer having charge of the prisoner who willfully refuses or neglects to allow that attorney to visit a prisoner is guilty of a misdemeanor. Any officer having a prisoner in charge, who refuses to allow the attorney to visit the prisoner when proper application is made, shall forfeit and pay to the party aggrieved the sum of five hundred dollars ($500), to be recovered by action in any court of competent jurisdiction.

Good luck trying to find a California District Attorney willing to charge the officer with the misdemeanor.  You’ll likely have no better luck getting a California court to allow recovery of the $500 from the officer.  (And, of course, it will likely cost more than $500 to hire an attorney to even try to recover that $500!)  But that just gets me back to the problem of California courts refusing to follow the law.

Most recently, I’ve encountered the “Only-The-Attorney-Of-Record” rule in Fresno County at the Juvenile Justice Campus (JJC).  Ironically, it happens even when I am the attorney of record, but word of this has not yet reached the JJC.  I’ll drive out to the JJC to visit a client, or potential client, only to find myself barred from entering because I’m not the attorney of record.

Now in this instance, I can see no justification whatsoever for the rule.  In particular, I don’t see how barring one attorney over another increases security.  And no justification has been offered, other than “that’s the policy.”  Bringing up Penal Code section 825(b) actually evoked the response, “That doesn’t apply here.  These are juveniles.”

And yet, they are prisoners.  And probation officers are officers.  And when I visit, I’m doing so because the family, or the potential client, or both, has asked me to visit so we can decide whether I will become the attorney of record.

I guess what I’m going to have to do is test this in court.  I’m hoping that test will come one of the days I’m an officer of the court.

But I’m worried about my chances for this.  Challenging jails and juvenile facilities for access doesn’t come under the rubric of “resisting something the court wants me to so.”  So I just have to hope you don’t have to be the attorney of record to be an officer of the court.

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One Comment

  1. Eric Essman says:

    Mr. Horowitz:
    I found your article interesting. Unfortunately I do not agree with you about the public perception of police officers and prosecutors being the “good guys” and defending attorneys being the “bad guys”. I wish police officers were thought of as the good guys because that is what they are the vast majority of the time. Unfortunately most people think of them in a less than favorable light. Video clips such as the one you posted showing two officers striking a suspect without explaining what went on immediately before that incident, lends fuel to the fire when it comes to having a fair minded view of our police force. Every incident has at least three parts to it. What went on immediately before the incident, the incident itself and what happened immediately after the incident. To judge a police officer on a few seconds or even a few minutes of a video clip is not fair or just. I am sure that if you were defending a client who was being prosecuted on the basis of a video clip, you yourself would bring up these same issues.I think most competent attorney’s would. But yet when it comes to the police no such issues deserve consideration. They are found guilty (in the public eye) without benefit of knowing the context of their actions and without knowing what prompted them to act in such a fashion. Police are usually presumed guilty (by most people)until proved innocent and that saddens me very much. Police are the people who keep us safe at night, so when the morning comes we can engage in our respective professions and have the time to write blogs and engage in recreational activities. I think that in general the police do a great job and are not given a fraction of the credit they deserve. They put their life on the line every day for people they do not know and for people who are ready to find them immediately guilty of anything the are acussed of. I do enjoy your column but wish you could view the police force in a fair and even handed manner.

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