Saturday, September 14, 2013

Finally something @ work wasn't like pulling teeth

I had an interesting thing occur @ work on Friday. I have a client who has a probation violation hearing coming up, so I requested the chronos from the state. Chronos are the probation records & should have all contacts btwn the probation officer & the defendant, any intermediate sanctions that were imposed, the defendant's progress, etc.

I had requested these one other time in my old county. That time around, I had an all-out battle to get them. I wanted them for a probation violation case & for a case where I was asking for a departure from the sentencing guidelines, trying to keep my client out of prison & instead have him on probation. Part of the argument in a departure like that is convincing the judge that the defendant is amenable to probation. So, I wanted to know what he had been doing on probation & what treatment options, etc. had already been tried (or not) so I knew what had or hadn't worked & what other options we should look into for him.

However, probation didn't want to turn over the records & argued that they were confidential pursuant to a state statute (which is true) so they shouldn't have to be disclosed. My position, and that of our office, was that if the probation officer is using those records against the client, by saying they failed to remain in contact or by summarizing the entire probation period by saying the client has done poorly on probation, then that information should be disclosed to us. The rules and due process require that a defendant is able to know the evidence being used against them. But probation & as a result, the state, opposed my request.

Eventually, after at least 2 court hrgs (there might have been more but I can't remember) and a number of court filings, mostly from me, the judge decided I could have some of the probation records. However, I couldn't have them all. Rather, the judge went through the chronos & redacted any information that he determined wasn't necessary or relevant for the defense's purposes.

Basically, it was a long, drawn-out fight that was exceptionally frustrating bc I was of the opinion that if it's being used against my client, I should have it & I was frustrated that the state & probation wanted to be able to prevent things they were using from being disclosed. I was okay w/ the judge's ruling, but it was such a pain to get to that point. So much work & so many court filings!

So, now I have another probation case in my current county. I need the chronos in order to see what has been going on worn my client so far while on probation. I expected a fight similar to the one I had had in the old county. I started by making the request to the prosecutor. I expected a reply that they were confidential, blah, blah, blah, so no, I couldn't have them.

I got a pleasant email back, a forwarded message from probation saying they needed a court order to release them, so the prosecutor had said if I drafted an order for the records, she would be fine w/ the court signing the order w/o a hearing.

I almost died of shock.

No arguments? No fighting? No refusing? Simply draft an order so probation can get me the information I need? What??

It was so easy & refreshingly simple! I used a template order we have & filled in the right information & faxed it over to the court. Quick & easy. It was so fantastic not to have to argue to get the discovery! And such a different experience than I had had in my old county! I definitely prefer this aspect of my current county more than the old county.

In other work news related to probation, I had a contested probation violation hearing a few weeks ago. I objected to a treatment discharge report that I got about 5 minutes before the hearing and the judge sustained the objection so the report didn't come in top evidence! And then we ended up winning the hearing--the court ruled that the state hadn't proven that my client violated probation! Woohoo! So that was awesome. I think that is the first one of those I have won. Normally we have a resolution on those cases so I haven't had many of those hearings.

That's all the news for now.

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