Candor to the court
Yesterday as I waited for my client's case to be called at a preliminary hearing in Georgetown (edit: a preliminary hearing is a probable cause hearing, where only the officer is permitted to testify and a magistrate determines whether there is probable cause to support the arrest), I watched as another attorney argued to the magistrate that his case should be dismissed because the officer had not provided him with a chemist's report prior to the preliminary hearing as required by Rule 6 of the rules of criminal procedure.
The argument sounded good to the audience and to the inmates who were lined up in the jury box waiting their turns. The only problem is that is not what Rule 6 says. My first impression is that the lawyer was intentionally misrepresenting the rule to the court - there was no prosecutor in this court to argue the other side, and the magistrate is not a lawyer. I admit it is possible that the lawyer did not read Rule 6 before arguing about it with the magistrate for nearly an hour, or that the lawyer had read the rule and misunderstood it (he did also say at one point that his client's case should be dismissed, because the officer had not established evidence beyond a reasonable doubt, much less probable cause - chew on that one for a minute).
I'll talk about what Rule 6 does say in a minute, but first the problem that I have with this is the possibility that the lawyer was purposefully misleading a magistrate. Magistrates rarely dismiss a case at a preliminary hearing, and there was little to gain by arguing something that is dead wrong. More to the point, some magistrates rarely listen to a defense lawyer or believe them when the lawyer is explaining how the law applies to their case. Because they don't always trust defense lawyers. And they don't trust defense lawyers because some defense lawyers (like some prosecutors, but that doesn't seem to bother anyone) make things up as they go, or outright misrepresent what the law is.
Rule 6 says that the state can use a chemist's report, or chain of custody affidavits, instead of live witnesses at trial, unless the defense objects to the use of the chemist's report and chain of custody affidavits by either 1) the preliminary hearing; or 2) 10 days before trial if there is no preliminary hearing. If the defense objects to the use of the report/affidavits, then the state must establish its chain of custody and the results of the chemical tests by live testimony.
I include an objection under Rule 6 in every Brady/ Rule 5 motion that we file at the very beginning of representation in every case, because if there is any fungible evidence or chemical tests, I want them to have to prove their case with live witnesses. I can't cross examine a piece of paper. No matter how I read the rule I can't see a justification for the argument this guy made to the magistrate - it's just not there.
My client asked me if I was going to "go after the cop" the way this lawyer did. I pointed out that I'm not there to entertain my client or the audience, that the lawyer was either lying to the judge or he was incompetent and that either way the judge would figure it out eventually when he went back and looked at the rule, and that the lawyer did not get his cases dismissed after all.
When I cross examined the officer in our case (the same officer), I was aggressive but not condescending, and I got a good bit of information out of the officer that may help us in our trial which will come later. I didn't act like a clown for the benefit of the audience. And I did get a dismissal from the judge on one count (small consolation, a proximity charge was dismissed but we still have a trafficking third offense to deal with).
All we have, whether we are arguing to a jury or to a judge, is our credibility. And if we are arguing to a judge, consider that we may well be in front of that judge again, and again, and again. For Pete's sake don't lie to him.
