Setting Every Damn Case For Trial: The beginning of the end of my “reign of pain” as a public defender.



When I worked for the public defender’s office I was a complete pain in the ass.  Or, at least I like to think I was. Considering a judge once told me I was “the only roadblock to an otherwise smooth running courtroom,” I probably was.

I pulled out every trick people would teach me. When I ran out of those, I’d invent some of my own and see how they worked. If they rocked, I’d use them until they wouldn’t. If they didn’t, I’d think up something else.

I don’t regret that. Not even a little bit.

“We need to shut down the system by going to trial on everything.”

Every few years some lawyer or justice reformist pops off to the media about “clogging up the system” and how they are going to bring the entire system to its knees by having people take every case to trial. I see this and I laugh. Then I cry a little bit.

People say that like that hasn’t been done before. As if those of us out here never saw that move. Like we never tried that. Like we never tried to change things through brute force… and like the system didn’t push right back and end up where it started.

In 2005 I walked away from a perfectly good paying Public Defender job into a solo practice.  I left behind a massive case load that was well in excess of what the A.B.A. says a public defender should handle.  I’m not joking about the huge number of clients, either. One year I estimated I dealt with over 4,000 cases.  Large case loads make it hard to do your job correctly.  On the other hand, they give you the sort of volume needed to cause problems.

When I moved into a jury room, I got partnered up with a guy who’d been there before and got to watch how stuff worked.  I didn’t have as many cases, but it didn’t take me long to learn new tricks and get after the state in new ways.

“Sir, please come back for trial in… almost a year.”

You know how we worked? We put the state on their heels with our crazy volume of cases.  At the height of our “reign” it was a full nine months from the time somebody demanded trial until their first trial setting.  The state was so overwhelmed that they were only getting subpoenas out a week to ten days before the trail.

They’d snap at us and tell us that we didn’t have to set every case for trial. Never one to not snap back, I’d frequently remind them that their cops didn’t have to arrest every person for every stupid crime… and that if their system couldn’t handle the volume of trials, perhaps it’s their system that needed changing, not my practices.

When you force the state to actually prepare for trial on every damn arrest the cops make, you’re going to win a lot of cases. Like, almost all of them. They were having to drop cases as quickly as we set them. We’d be crazy to change anything.

The World vs. Us.

Obviously, we didn’t particularly get along with the state’s attorneys at the time.  There was a very serious rift going on that pre-dated my getting moved to the jury room (serious as in, at one point the State’s Attorney was claiming he was considering indicting two people in my office).

The judge in there was doing everything he could to take back control- the system fights hard when you upset the equilibrium.  The first “push back” I remember at the time was the judge trying to box us into some unrealistic timeline on defense motions. We’d get appointed, not even have police reports, and he’d order that we would have to have any and all defense motions filed within 30 days… even if the trial was 9 months later. The thinking was, I think, that unrealistic motion cutoffs would eliminate pre-trial hearings up the road.

Right. For a little bit. We weren’t the kind of guys who were going to let anybody or anything tell us how to litigate. We countered with a form motion that had nearly every type of defense motion included. Even the very day we were appointed, we could fill in a name, check all the boxes, and give it to the clerk. Boom! If we want to move to dismiss- or for any other relief- the case in 6 months, we’re golden.

Back in business, and good to go again. All is right with our world. I mean, we’re still not exactly getting along great with the state’s attorneys, but we’re not paid to make friends. So, there are some skirmishes, but things are going well.  Zero effect on pretrial hearings.

If you can’t change the people around you, make their lives hell.

Then, a funny thing happened. One day, in a crowded courtroom, one of us had done something to anger one the assistant state’s attorneys… again. The judge was off the bench. I don’t remember what lead up to it, but I remember hearing, “That’s it, no more offers to public defender clients” loud enough so that all our clients could hear (coming from an assistant state’s attorney standing in front of and addressing all of the defendants).

That’s not cool. Telling people they’re going to get treated worse because they’re represented by the public defender isn’t something a good public defender will let go without notice.  We noticed.  Of course, as it related to court that day you wouldn’t have noticed we noticed… because it was business as usual and everything was getting set for trial.

When court closed for the morning, we headed back to the office and chatted about how to deal with the prosecutor’s barking to our clients.  We’d definitely noticed.

It wasn’t about hard feelings. It wasn’t about a plan. It was about just doing things.

As I remember it, that was a Friday. The boss was gone for the day.  It wouldn’t have mattered if he was there.  It didn’t seem that we needed to track him down about prosecutor shenanigans in a misdemeanor courtroom. Especially when we could handle it ourselves.

In his absence, we set off on a pretty diabolical course. You know how people talk about jamming up the system? Do you know how to jam up a system that is already so damn jammed up that your trial date for disorderly conduct is 9 months out?

Gather ’round the camp fire and I’ll tell you how:

Late on a Friday afternoon, you mock up a speedy trial demand form.   You have both attorneys in that courtroom sign it.  Then, you make like, a billion copies. You take those copies, and hand-write in the case number and name for every case that’s already set for trial months out. You keep filling those out until it’s minutes before the clerk closes. Then, at 4:25 on Friday with the boss nowhere around, you file those with the clerk and give copies to your buddies at the State’s Attorney’s.

Then you calmly walk away as the bridge starts to smoulder behind you… and you just don’t care because nobody should treat your clients like that.

If you’re unfamiliar with how the law works, you can’t believe the problem this creates. They were already scheduling 20 trials on 3 days a week.  Now, everything more than 160 days out has to be advanced forward and put on top of the trials already scheduled. And, it’s the prosecutor’s damn job to motion every one of those cases earlier… and notify their witnesses, get lab results, etc.

If they don’t? The court has to dismiss the case.

There’s your jammed system right there. Of course, we filed those things, left the office and enjoyed the weekend like nothing happened- we’ll show them to tell our clients they’re not getting offers.

Happy Monday. This might hurt (us).

Then came Monday.

Apparently we weren’t popular on Monday.  Not popular with the prosecutor’s office. Not popular with the judge. Not popular with the presiding judge.  Not popular with the boss. I don’t recall the exact sequence of events or who yelled at whom first. I know that burning bridges causes a lot of heat, though.

All of it was aimed right at us.

When you think about “the system” it’s a lot more than the scheduling and disposition of cases by the judge. To some extent, all of these local systems take into account the prosecutor’s and public defender’s offices to make things run as smooth and efficient as possible.

Behind the scenes of the formal system is an even more ugly world. It’s a world where county officers go to budget meetings, justify their employment to county boards and generally try to keep the machine running on whatever resources they’re granted.  There are a lot of unseen, political and economic forces that have nothing to do with the bill of rights, justice, or trials.

Our courtroom genius stunts seriously disrupted the way the system thought the system should work. Instead of grinding to a halt, the system lashed back right at us.

Needless to say, through several “discussions” with various county personnel (I remember them more as listening sessions than discussions, really… nobody wanted my opinion at that point) including the judge (who was “talked to” by the presiding judge) the system managed to put itself right back were it was before we filed the speedy trial demands. Crazy how that works.

Change that just won’t last.

Without going into any of the specifics of any of the conversations, we ended up waiving each and every speedy trial demand we filed. We also never filed another speedy trial demand over the time that either of worked there.  In fact, I’m not sure we ever even brought it up with a client.

Neither of us work there any more.  This coupled with some of the other “fun” we had directly played a part in one of us leaving and, at a minimum, indirectly played a part in the other leaving. That prosecutor who was yelling out to our clients? Never an issue there.  The prosecutors never get in trouble, it seems.

So, there you go. Jam up the system if you want. It’s got its own inertia, and it will blindly run you over to avoid changing- no matter the reason for the change.  If you think jamming up the system is going to end worse for the system than it is for you, though, you have no idea what you’re up against.

Whatever you do, though, stop acting like others before you never tried. We tried. The system is running now just like it was ten years ago. We’re gone, though.

17 thoughts on “Setting Every Damn Case For Trial: The beginning of the end of my “reign of pain” as a public defender.”

  1. What a great post. Do you mind elaborating on why exactly you waived the speedy trial motions? I mean, obviously you were under a lot of pressure from the boss, the prosecutor, the judge, etc., but why didn’t you just tell them to go read the Sixth Amendment and get bent?

  2. Thanks, Owen.

    I intentionally didn’t get too into the off-the-record conversations and probably still shouldn’t get too detailed. I can tell you that the presiding judge went to town on the judge in our courtroom. We were told that if the whole issue wasn’t “resolved” they were going to shut down the civil side of the courthouse for 3 weeks to ensure trial on each and every case- and that our office would be responsible for making sure attorneys were ready at each of the trials in every courtroom.

    Not everybody shared our enthusiasm for the tactic. It became impractical, if not impossible, to persist in the demands… and I’ll leave it at that.

  3. As the other half of the team that created the above scene, I remember it as a hazy time of frightened villagers waving torches and pitchforks at Frankenstein’s monster (or tag team of monsters, as Matt and I were likely called behind closed doors).

    The weirdest thing? No one, let alone our boss or his bosses–the County Board and Chief Judge–ever used the phrase “well intentioned” or “well meaning” or even the basic phrase “zealous advocacy” to describe our work.

    Random clients got it. Maybe one other Asst. PD got it (before he left for a tropical island). But certainly no one else did.

    As someone raised in Chicago and Cook County, you’d think I should have been more self-aware to at least anticipate the torches and pitchforks. I mean, idealism only gets you so far, right? Doing a good job for your client is what they teach and what you have to swear to with your right hand raised, right?

    Could I have misheard the oath? Let’s check:

    705 ILCS 205/4
    Sec. 4. Every person admitted to practice as an attorney shall, before his name is entered upon the roll to be kept as hereinafter provided, take and subscribe an oath, substantially in the following form:
    I do solemnly swear that I will support the constitution of the United States and the constitution of the state of Illinois, and that I will faithfully discharge the duties of the office of attorney and counselor at law to the best of my ability.

    NOPE. I remembered it right. Too bad the head PD, the judges, the prosecutors, and yeah our colleagues in the office, all misheard it.

  4. P.S. I guess I outted myself. Matt, feel free to use my name whenever.

    If I read your post again tonight after a quality beer (or two) like Ska Brewing’s ‘Modus Hoperandi IPA’, I just might out the rest of those filthy animals, too.

  5. I am not an attorney, but I work with several in attempts to promote conviction integrity. This post was incredibly well written and and a real eye-opener for those of us who have witnessed the trials (no pun intended) and tribulations of PD’s from afar. I have heard calls for “jamming up the system” quite a bit lately. I am so glad that you reminded all of us that it is NOT a new idea, and that efforts to jam up the system tend to backfire more often than not. Although I get it, the system loses so much more than mere individuals when conscientious people like you and your colleagues feel you have no other choice but to depart…

  6. Lol. I had a similar experience in a jurisdiction where I previously worked. Example, you had bench trials for DWI’s and I saw judges finding people with .06 and .07 guilty. So I am being told BY DEFENSE ATTORNEYS to just plea my client out because it wasn’t worth fighting. My response was to take every single DWI to trial regardless of the facts. I figured if they were going to screw my client, I was going to take up 3 to 4 hours of their time and object to everything. The surprise for me was that there were a few judges who appreciated that I took every single DWI to trial. Less than 10%, but whatever. We also didn’t have a statutory right to discovery in District Court, but the legislature mandated all motions to suppress be filed before trial in DWI cases only. Otherwise, we waived our right to object to any 4th, 5th or 6th Amendment issues. This is a initial copy of our DWI Omnibus Motion that the defense bar came up with on the fly. (Feel free to put it in HTML) It wasn’t appreciated by the Judges or the assistant district attorneys. In one case this newbie ADA said “Ok, you checked off everything. What are you trying to suppress.” My response was “Everything. I might be able to narrow it down if you gave me a copy of the police report.” I didn’t limit my being an a-hole to DWI’s and it ended very badly with me moving back to the jurisdiction where I began my career as a lawyer.

    I have two separate websites where I share some of my defense motions. I’d like to be able to link to yours. Let me know if I can.

  7. Michael – Glad to hear you were rocking the boat, too. Part of the reason I originally drafted this post was because I get annoyed when people talk about how we need/should to set everything for trial… it’s been many times already! Your DUI motion is very similar to ours. I love it.

    Feel free to use the motion in your site. If you could link back to where you got it from, I’d appreciate it!


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