Legal Update

I am feeling practical today. The last few days have been very emotional, so this is a welcome break. Given my collected state of mind, it seems like a good time to update everyone on the status of the court case. I’m sure after my entry on how I felt seeing David Cook for the first time, you all wondered about what that court event was and what is happening next, but at the time I wrote that entry I wasn’t up to explaining it all.

One of the things I am realizing in talking with some of you lately is that there are some misperceptions in your information, which is likely my fault. I have told so many people so many things that I don’t know who I have told anything to. So in the interests of a clean slate, I will try to start from the beginning and not assume you all know what has gone on. But first, a note to the lawyers and lawyers-to-be in the family: I am sure I will not get terminology correct as I write about this. I am going to do my best to explain things I don’t fully understand myself, and to do it in plain English, which is NOT how it is explained to me, so if I’m not perfectly technically correct, bear with me.

By way of context, it may help to understand how things usually work, and how this case is different. In most felony cases in this state, a defendant is not charged until two things happen. First, the police investigate the incident, and if they believe a crime has been committed, they send the results of the investigation to the DA. Next, the DA takes the case to a grand jury. If the grand jury agrees the defendant should be tried for a crime, they return an indictment for a specific charge. An arrest warrant is issued, and the defendant is arrested and appears in court for an arraignment. During this arraignment the defendant is charged with the crime, enters a plea, and bail is set.

In this case, things happened out of order. David Cook was arrested the day after the accident and charged with manslaughter, before the police investigation was done or a grand jury was convened. The decision to do this was made because the police were very confident that he had committed a crime, and because they felt he was a flight risk. By charging him, they ensured he could not leave town without forfeiting his bail. He appeared before a judge two days after the accident, and pled not guilty. Bail was set at $50,000, and he made bail with the help of a bondsman. He spent just a few hours in jail before being released, and has been out of jail ever since.

For the next several months, the police investigation was conducted, and in August, the results were sent to the county DA. The DA took the case to the grand jury in October, and the grand jury agreed that he should face trial, and returned an indictment of manslaughter. If they had not done so, all charges would have been dropped. This is a second degree felony, and I am told it carries a sentence of 2 to 20 years.

Once he was indicted, an arraignment was scheduled. Keep in mind that normally this is when he is formally charged, enters a plea, and bail is set, but in this case, all that had happened months earlier. That means that in this case, the only real surprise would have been if he appeared at the arraignment and changed his plea. Barring that, the arraignment was little more than a formality.

The arraignment was the event at which I saw him. I am learning that Law & Order bears little resemblance to reality - the arraignment was nothing like TV, so I will try to give you a picture of what happened. The courtroom setting did look quite a bit like TV. You enter through double doors at the back of the room. There is a center aisle with four long rows of benches on both sides, and a swinging wooden gate that you pass through to enter the lawyer’s areas. There are tables for the prosecution and defense in this area, one on either side of the aisle (prosecution on the left, defense on the right – opposite how it is always shown on TV). The judge sits in the front right corner of the room, and the court clerk sits at the front center of the room. The jury box is in the front left corner, and prisoners are brought in through a door near the judge’s bench. There was no judge at all for the time I was there. David Cook’s arraignment was scheduled for 8 a.m. that day – and so were the arraignments of thirty other people. Another thirty were scheduled at 8:30. That should give you some idea of how much actual time goes into any one case.

There were three District Attorneys seated at the prosecution table. In the area immediately behind them were rolling carts full of files. There were dozens of people in the spectator area, mainly defendants out on bail, including David Cook. At the appointed time, all the defendants’ attorneys formed a single file line that started at the front of the table with the three DAs, and coiled through the front center of the area back toward the judge’s bench. The DAs have their backs to the spectators, but the defense attorneys face the spectators. As they reached the head of the line, they spoke to whatever DA was available, and told the DA what defendant they represent. The DA retrieved the case file from the rolling bins, and there was a quick and very quiet conference between the defense and the DA. The defense attorney did not necessarily speak with the actual DA assigned to the case – in this case, he talked to another DA. Spectators cannot generally hear what is said, partly because the attorneys talk quietly, and partly because there are so many conversations going on simultaneously – conversations between the attorneys, conversations in the spectator area among all the people waiting, conversations between the court clerks at the very front of the room. Also, doors are opening and closing, people are walking in and out, etc. At any rate, the two lawyers confer, and provided that they agree on next steps, both sign a piece of paper indicating when the next court date will be. The defense attorney takes the paper to the front of the room and registers it with the court clerk, then walks into the spectator area and updates the client on what happened. The only time the judge gets involved at this stage is if the DA and the defense counsel cannot reach resolution on the current issues in the case.

In this case, there was no change to the plea, so the hearing was a non-event. The only way I even knew the players was that the victims’ assistance counselor had described the DA to me, so I knew who he was. I have seen David Cook’s mugshot, and I know his attorney’s name and saw his picture on his website. I had actually printed pictures of David Cook and his attorney in case I needed them, but I didn’t – I knew them both instantly. I could not hear much, but I could tell that the only event of any significance was that the DA did not have the case file at all (doesn’t give you a lot of confidence in the system does it?). The defense attorney explained the case situation and waited while they searched for the file. I could tell from watching the DA’s body language they didn’t have it. I heard the defense attorney ask if the DA knew if there was a particular item in the file (I couldn’t hear what), and the DA said he didn’t know, but that the defense counsel should leave a blank DVD and if it was in the file they would give him a copy. Then they compared calendars and agreed on the next court date. I couldn’t hear what they said, but I found out later in the day it is set for January 19. Then the defense attorney went and spoke with David Cook and a man I’m sure is his father, and they all left. None of them, including the DA, ever knew I was there. And why would they? I’m just the invisible spectator who loves the invisible victim.

This is exactly what the DA’s office had told me to expect – a quiet conversation, and another court date in 60 days. What I have now learned is that these hearings are almost always a quiet conversation in a crowded courtroom with no judge participation. Unlike Law & Order, where each hearing has a purpose that has significant impact on the case, in real life the purpose of these sessions is very different. In layman’s terms, they are essentially the system’s way of forcing two sets of busy attorneys to talk to each other. By establishing a series of these sessions, both sides are forced to talk about the case at regular intervals. They should be talking to each other between sessions also, but at a minimum they are conferring during the sessions. While in court, they update each other on their readiness for trial, discuss any requests for evidence sharing, address any procedural issues, and in general talk about whatever needs to be discussed to move the case toward trial. Generally, there is not a need for the judge unless they cannot reach agreement, in which case they will request a conference with the judge.

I am told that in less serious cases, there are generally three of these sessions. The first is the arraignment. The next is scheduled for 60 days later, and in that second session, a third is scheduled for 30 days later. In that third session, a trial date is usually set for some future date. In a case this serious however, there are generally at least two additional sessions, 30 days apart. Assuming that estimated timeline holds, that would indicate that after the January session, there would be another in February, in March and in April, and then the trial would be scheduled.

I am told that at some point there may be a discussion of a plea bargain. I have been assured that before holding any plea discussions the DA’s office will contact me so that we can weigh in on the matter. I asked if that might happen before the Jan. 19 court date, and was told it is highly unlikely anything would happen before then, I think because the defense has not yet had the opportunity to see the evidence, so they cannot yet judge whether or not they should try to plea. Important note: Because this is a public forum, I am intentionally not sharing any specific information about the evidence. If I have already told you something about the evidence, please do not reference it if you post a reply to the blog. If you have questions about the evidence, email or call me and I will answer privately.

The hardest thing about all this is that I had this mental TV picture of going to these hearings and being able to follow along as one prosecutor, one defense attorney, and one defendant appear before a judge, and talk out loud for all to hear. And on TV, when the hearing ends, the DA turns to the victim’s family, and comments on what happened, or reassures them he will get the guy, or SOMETHING. Because it doesn’t happen that way, David Cook knows right away what happened, and I don’t, which is terribly frustrating. I have to leave the courtroom, call the victim’s assistance counselor, and have her chase down what happened. That can take a while because the DA is still back in court, and the court clerk records don’t get updated instantly. Even then, all I know is that the next date has been set – I don’t know what HAPPENED in there. I don’t know what the defense asked for, what the prosecutor told them, or anything else. So I have developed an alternative strategy – a little unorthodox perhaps, but not illegal. I will not reveal it here (again due to the public forum), but suffice it to say that I am determined to find a way to get more information than the system wants to give me, and I will keep trying new approaches to get what I want. If they won’t provide it easily, I will just get creative. I’ll keep you posted.