‘Forgotten’ Defendant Sits in Jail for Two Years

Criminal Procedure

‘Forgotten’ Defendant Sits in Jail for Two Years

Posted Sep 2, 2008, 08:25 am CST
By Debra Cassens Weiss

The federal prosecutor in St. Louis says she is concerned about the performance of a lawyer who represents a defendant sitting in jail for almost two years with apparently no action to secure his release on bond.

U.S. Attorney Catherine Hanaway spoke to the St. Louis Post Dispatch about the case of Joseph A. Shepard Sr., charged with intent to sell methamphetamine and gun possession. The newspaper labels Shepard “a man the system forgot.”

Lawyer Michael P. Kelly has not filed any documents on Shepard’s behalf in all of 2007 and 2008 and apparently did not seek his release on bond, the story says. "I am very concerned about his lawyer's performance," Hanaway told the newspaper.

"As best I can ascertain, [the judge] issued an order saying if the defense complied with certain conditions, the defendant would be bonded out. And no response was ever made to that order," she said.

Hanaway said her office first realized Shepard was still in custody when it negotiated a possible plea bargain with Kelly in mid-July. Shepard told the newspaper that he wanted the deal, which called for a four-year sentence, but Kelly turned it down.

Prosecutors also discovered that a federal magistrate had failed to issue a ruling on evidence that Kelly had challenged in the case. After prosecutors pointed out the delay, the magistrate issued a ruling on Aug. 4 excluding evidence from a search of Shepard’s house and statements he made to investigators. But prosecutors have other evidence obtained during a traffic stop of Shepard.

Hanaway said prosecutors weren’t required to move forward with the case while the evidence ruling was pending. She also admitted, “We weren't paying any attention."

Kelly did not respond to requests for interviews by the Post-Dispatch. He is also a municipal court judge.

Shepard told the newspaper he had passed the time reading and praying. He said he had developed patience from his hobbies—fishing and working on cars and motorcycles. He figured, correctly it turns out, "If I just sit here long enough, something's going to happen."

Comments

Report Abuse

Posted by Judge Judilicious - 2 months, 2 weeks, 3 days, 4 hours, 18 minutes ago

This is so typical of a government peons - bungling baboons blaming others. The entire justice system fails this guy and the prosecution blames the defense lawyer? I’m just surprised that Hanaway didn’t blame Shepard. I am very concerned about Hanaway’s performance and suggest that the Bar take a good hard look at her too. Hanaway said prosecutors weren’t required to move forward with the case while the evidence ruling was pending. She also admitted, “We weren’t paying any attention.“ Isn’t that an admission of incompetence?
Posted by OldShark - 2 months, 2 weeks, 3 days, 2 hours, 15 minutes ago

No Harm No Foul? This guy is in jail waiting to take a four year deal. By staying there he as likely built up enough time to get out. I don’t see the major problem.

Typical of the prosecutor to blame the defense. I don’t see her rushing to null pross the charges. Also, he may not have been able to meet the bond conditions.
Posted by cwreader - 2 months, 2 weeks, 3 days, 19 minutes ago

What is typical is these previous comments blaming the prosecutor. The USA was waiting on the magistrate to make a ruling, necessary before proceeding to trial. Apparently the magistrate just forgot. Whose fault? Who reminded the magistrate? Not defense counsel.

What court rule says that it is the prosecutor’s duty to pay attention to how long it takes a magistrate to make a ruling and rush or remind the magistrate? And look what happened. The prosecutor brought the magistrate’s inexplicable delay to the magistrate’s attention and the magistrate ruled against the party who made the magistrate look bad.

The USA may not be blaming the defendant, but I would. How does he just sit quietly for two years without writing letters to friends and family and without sending out kites - to get his attorney or somebody to do something? The speedy trial case law considers whether the defendant made objections and what was the cause for the delay. Sitting on your hands and then complaining later is game playing. As post#2 says, building credit for time served can be useful in negotiations.

Doesn’t the court set a trial date and omnibus schedule? With these deadlines it would be impossible for there to have been no activity on an ongoing case for two years without some explanation. When a public defender’s performance is deficient, often the judges share some of the blame. This is one of those cases. There should have been a trial date and a schedule for motions.

Defendant’s counsel had two years to meet “certain conditions” for his client’s release and there has been no action. Defendant could have been free all this time while the lawyers and court were overwhelmed with other business. Counsel’s failure to address this order does not look good. The defendant is defense counsel’s client, not the USA’s client.

I sure hope Judge Judilicious isn’t a real judge. No appearance of bias there.
Posted by judge judilicious - 2 months, 2 weeks, 3 days, 3 minutes ago

Cdub - you wouldn’t just happen to be a prosecutor would you? Sending kites? Really? To whom? You? Which side has all the burdens? State! Which side has all the money? State! Which side is chronically underfunded? PD! The reality is that PD’s are treated as abused red headed step children. Oh, and just because the defense attorney fails to do something doesn’t excuse you from “not paying attention.“ The prosecutor deserves to be sanctioned for their incompetency.
Posted by jeva - 2 months, 2 weeks, 2 days, 21 hours, 40 minutes ago

The entire system failed Mr. Shepard. Although charges may have timely brought, he was not prosecuted in a timely manner. There is no mention that he made a knowing (if any) waiver to a speedy trial. Most importantly, he was deprived of his liberty without due process of law. Consequently, Mr. Shepard’s case should be dismissed with prejudice and with an apology from the court on behalf of the entire city. It is shameful—Shepard was literally abandoned.
Posted by cwreader - 2 months, 2 weeks, 2 days, 20 hours, 6 minutes ago

JJ - I persist in my belief that you are misrepresenting yourself and are not a judge. Other parties clearly bear blame, but you attack the prosecutor for not doing someone else’s job. Sounds like a burnt out defense attorney. Your “all the money” comment confirms that you are a criminal defense attorney. The money comment is specious and has NO RELEVANCE TO THIS ISSUE.

As a detainee you can send kites or write letters to whomever you wish in order to remind them of your case: either attorney, the judge, your family, a newspaper reporter. You can file motions pro se to remind the court you are alive.

The State has the burden of proving the defendant’s GUILT beyond a reasonable doubt. The State does not have the burden of rushing a magistrate into making a ruling or telling a defense attorney what motions to file or, generally speaking, reminding either of these to do their job in a reasonable time period.

Whether there is a speedy violation will likely be litigated, but there are many elements to be considered.
Posted by Todd - 2 months, 2 weeks, 2 days, 14 hours, 31 minutes ago

Everybody has some duty to this guy, be it legal, ethical or moral. Everybody involved shirked that duty… From the judge on down to the jailer to the defense and prosectors to this poor schmucks family.

A judge that sits on a ruling for an inordinate amount of time shouldn’t be sitting on a bench. At best he’s incompetent, at worst he’s senile and a danger to himself and others!

A prosecutor that allows a case to linger because “it isn’t his job.“ isn’t much of a lawyer at all and is being negligent in his duty to the legal system (never mind the defendant) by allowing a case to “ripen” as this one has. There is no excuse for this. NONE. When I’m the boss, asking “is that my job” is a firing offense! First time. No second chances.

But a Defense attorney that allows a client to rot in jail and doesn’t provide zealous representation should change careers and become something more appropriate for their level of un-caring (I’m thinking Telecom Customer Service Manager). In fact, the BAR should seriously consider disbarrment. (But of course, none of us REALLY have all the facts here so maybe we should all hold judgment for now….)

CWREADER - You cannot seriously be trying to put this on the defendant, can you? If you work in crim law on either side of the aisle, then you know that at the very least a large minority (though I’d say majority) of defendants are ignorant of the law and do not know they can address their own problems. THAT is why they have attorneys! I’ve been a cop, a paralegal and am now a law student…so I know whereof I speak in this matter… so many of the people that I’ve had to deal with in my legal career have simply been ignorant! (not to be confused w/ Stupid…though there are plenty of those as well.)

IT IS an embarrassment that this defendant hasn’t had his/her day in court. It is more of an embarrassment that the people who are supposed to be dealing with this are too busy playing the CYA game to actually get anything useful done.

SHAME on all of them.
Posted by ambimb - 2 months, 2 weeks, 2 days, 2 hours, 28 minutes ago

What about the constitutional right to speedy trial? The prosecutor has both an ethical and legal duty to diligently prosecute and she admitted she failed in that duty. Two years of pretrial incarceration ought to be more than enough for the court to tell the government: Sorry, you lost your chance to prosecute this guy. Case dismissed!
Posted by Irwin Ironstone - 2 months, 1 week, 6 days, 22 hours, 27 minutes ago

Not so amazing. There are cover ups in the system to protect judges and lawyers. I inadvertently received an audio tape of a hearing where a 15 yo was held in jail for an extra two months. the judge covered for both the defense attorney and the prosecutors. I sued the Judge in Federal court under the FCA - since the system is reimbursed by the feds for maintaining jails. The Federal judge dismissed under 12(b)(6) saying that there was no cause of action. (I tried to find out more, but since it was a juvenile, the records were sealed.) I used the FCA because I could not sue on civil rights actions. It is obvious that keeping people in jail or prison happens all the time and the legal profession protects their own! email for more information.

Commenting is not available in this weblog entry.

ABA Journal - Law News Now

Criminal Procedure