A Day In Criminal Court

I had a motion in an eviction case today and the other side filed an affidavit on the assigned judge.  Usually, this would result in the case going over to the other civil judge, but he was on vacation today.  So instead it went to a judge in a criminal court, and we wound up sitting around for three hours listening to arraignments, plea-bargains, and sentencing.

One of the things that impressed me about the proceedings was not the thoroughness with which the judge approached the defendants’ Constitutional rights, but rather the detail with which she treated the probation or O.R. terms.  And some of it seemed very stark and painful to hear.  “You are not to own, possess, or be in the presence of firearms.  This is a lifetime ban.  You are to submit to searches of your person, your effects, your vehicle, and your home by any law enforcement officer, with or without probable cause or reasonable suspicion, without notice, and at any time.”  For a felon, the ban on owning weapons is probably a good idea, but hearing it expressed in that fashion seemed harsh.  I don’t own a gun, but if I wanted to, I could — and I like that this is my might.  If a cop wants to shake me down for evidence, I can demand that the cop explain why or require that the cop produce a warrant.  I value that right very much. 

How awful to have those rights stripped from you.  How dehumanizing to have to stand there in court, wearing a county-issued jumpsuit, and have a stranger in a black robe unemotionally recite these diminution of your citizenship.  How terrifying to have to accept the advice of a stranger who is your appointed attorney (she may well really be on your side but probably doesn’t have the time to build a significant relationship of trust with you) who tells you that it’s probably better for you to spend some time in jail than the other alternatives available to you.  Jail seems like a very scary place to me.

It was clear the judge thought there were better and more pressing demands on her time than another judge’s civil calendar.  She ran through long-winded recitals of rights for every defendant, and detailed descriptions of the terms of prison and jail sentences (for the uninitiated, “jail” is a facility which you are intended to stay in for less than a year, and “prison” is for visits of more than a year; your results may vary).  At one point, there was a break in the action and one of the prosecutors turned to me and expressed frustration with the slow pace of the proceedings.  Apparently he was used to doing things about three times faster than what was being done.  It was hard to tell if the public defenders were similarly frustrated; they were very busy trying to tell their clients what was or was not a good deal and hashing out plea arrangements with the prosecutor.

After a break for the morning recess and returning for the afternoon calendar, the judge heard the motion and got it wrong, not understanding that when the plaintiff remits all claims for money, habitability ceases to be an issue preventing entry of a judgment for possession.  Nor did she care that the defendant had failed to invoke that defense at all in the basic pleadings but instead raised it only in a declaration opposing the motion.  So in addition to all that good fun described above, we got a bad ruling and now our client is going to have to pay even more money than before to get this troublesome piece of crappy property vacant so he can rehabilitate it and avoid habitability issues in the future.

In the meantime, he’s apparently supposed to somehow teleport all the trash away and use telekinesis to repair the claimed damage to the property because the tenant will not allow him to enter the premises and make repairs.  But this sort of Catch-22 is a normal frustration for evictions.  Getting sent to a criminal court where the law and facts get short shrift from the bench is not.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. You also try cases in front of a jury?If I heard correctly Ms Kagan, along with never being a judge*, she never tried a case in front of a jury.* The media did get out in front of this and stated a third of Supreme court judges weren't judges.

  2. Yes, I do jury trials. At least, I often prepare them for trial and push them to the brink of trial and convince myself that I'm going to win, whereupon my clients instruct me to settle them rather than risk trial. Earlier this summer, I had four major jury trials in a row stacked up and they all went more or less that way in a matter of three weeks. That is the reality of in-the-trenches litigation not involving economically powerful parties.

  3. Then I considered you more qualified to sit on the Supreme Court than Ms Kagan.

  4. What? Am I understanding this correctly? Getting evicted in California can result in a felony conviction?

  5. No. Evictions are civil cases here. It happened that the civil court I normally do evictions was unavailable due to a legal maneuver of my counterpart on the other side of the case, so the case had to be heard in another courtroom. That other courtroom was handling a criminal calendar and the judge was not familiar with eviction procedures, thus my gripe.

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