Do I Dare To Eat Your Peach?
I understand that times are hard for lawyers statewide. Receipts are down, the public defender’s offices of the state are swamped, and judges are concerned lest the judicial system be capsized by a tsunami of pro se litigants. We aren’t immune from the ebbs and lows of the business cycle after all.
But what I do not understand is a rigid adherence to empty form. I take special aim this week at Martin Zeldis, the Chief of Legal Services for the state’s Division of Public Services. I am not sure what has changed in his office in recent months, but something has. A brittle almost bureaucratic spirit has taken hold; a once proud and independent office is beginning to resemble a kingdom of semi-retired peck sniffs.
A criminal defendant, we all know, has a right to trial. And if a defendant loses that trial, he has a right to an appeal. Often times a family can muster a fee only for trial. In those cases, a client files a motion for waiver of fees and costs, and, if eligible, he or she is appointed a public defender to perfect his appeal.
In these cases, the public defender’s office sends a questionnaire to trial counsel together with a request for the trial file. It is a good questionnaire, asking for information about every conceivable part of trial. Where there challenges for cause denied during voir dire? Did the defendant use all his peremptory challenges? Was a motion for a bill of particulars filed? If so, on what date, and on what date was the motion either granted or denied? And on, and on, and on the form goes.
These forms are the despair of a trial attorney. When I lose a criminal trial, I go into a state of mourning, accompanied by all the stages of grief, including denial. The last thing on my mind after trial is completing a checklist for appellate counsel’s edification. These forms often arrive at a time in which I am in trial in another matter.
I typically do not do a very good job filling out these forms. In part, it is difficult for me to understand why competent appellate counsel needs me to tell them what is in the record. When I was taught to write appeals, it was understood that appellate counsel read the transcript, mastering the details, and checked the court file. I didn’t expect to be spoon fed an outline of what I was doing. Indeed, the joy of appellate work is immersion in the trial. It would not have occurred to me to call trial counsel before I had done this work.
But times have changed, apparently.
In recent weeks, I have had several forms returned from the public defender’s office. I have been threatened with motions to compel unless I fill out the forms in greater detail. I wish that there were Rule 11 sanctions ready and available for responding to foolishness of this sort in the state practice. Just why I am expected to fill out some bureaucratic cheat sheet is beyond me. If you want to know what happened at trial, read the record; do I dare to eat your peach?
The next time the judges of the Superior Court gather together to consider a change to Practice Book rules, I recommend a special look at 43-33 subsection c. The rule currently requires a trial counsel to provide the public defender’s office complete copy of the trial file and "a complete appellate worksheet, which shall be provided by the office of legal services." The court is empowered to order trial counsel to cooperate. What rationale supports requiring trial counsel to tell appellate counsel what happened a trial? Isn’t that what an appellate lawyer does?
This is simply make work.
I have perfected scores of appeals in my time, and, in a few instances, I have done so as a special public defender. Not once did I rely upon, or need, an overview of the file in the form of some pettifogging worksheet to help me spot the issues. In each case in which I asked for the help of trial counsel, a phone call was all that was necessary. But times, I say, are a changin’.
Gawd, are there no heroes left? Even the public defenders, who boast of doing God’s work at the people’s pay, must now succumb the bean counter’s lust for lists and forms. For shame!