Criminal
May 30, 2001
Lawyer-to-Be Learns Real-Life Lessons in Traffic-Court Trial
LOS ANGELES - Stephen E. Foster has won his first court case - even before he's made the transition from aspiring lawyer to practicing attorney.
Foster, who on Friday was awaiting nervously the results of the Bar Exam, recently won a reversal of a guilty verdict against him for failing to appear on a traffic violation. The appellate division of the Los Angeles Superior Court ruled that the court's failure to advise Foster of his right to a jury trial was reversible error.
"I'm unbelievably happy," Foster said. "I'm so pleased to have this off my record."
The 29-year-old graduate of Southwestern University School of Law received a traffic ticket Nov. 9, 1999, for allegedly running a red light. Because the Dec. 21 hearing date fell on the same day as his final exam in tax law, Foster requested an extension through the court's voice-automated system. Foster didn't want the stress of fighting a traffic ticket in court on the same day as a law school final, he said.
On Jan. 27, 2000, he received a warrant for his "failure to appear." So he hustled down to traffic court the next day, and a clerk set an arraignment date of Feb. 8.
Foster pleaded guilty to the traffic infraction, but when he said he wanted to plead not guilty to the failure-to-appear charge, Judge Pro Tem Alfred Testa Jr. told him he could not "split his pleas," Foster said.
So the judge changed the plea on the traffic violation to not guilty and set trial for both matters for March 24. Meanwhile, Foster posted bail of $443 - $110 for the moving violation and $75 for the failure to appear, plus penalties.
Foster, who works for Mitchell, Silberberg & Knupp in West Los Angeles, enlisted the help of his mentors, firm partners Tom Lambert, Peter Gelblum and Hayward Kaiser. He then collected declarations from fellow law-school classmates who said that they knew he called for the extension.
Armed with the declarations, Foster returned to court on March 24. Because the citing officer failed to appear, the judge dismissed the traffic infraction, but promptly convicted Foster of misdemeanor failure-to-appear.
"It was manifestly unjust," Foster said of the trial court's ruling. "I believed I had executed a valid, 60-day extension, but something went wrong and my extension never got recorded. That is not willful failure.
"It's embarrassing as a potential future officer of the court that I failed to appear on a date that I promised I would," he said. "I didn't want that to happen, so I vigorously appealed."
In its opinion issued May 16, the appellate court invalidated the trial court's verdict, noting that the judge did not advise Foster of his right to a jury trial, nor get a waiver of Foster's right to a trial. While conceding that the appeal involved the "common scenario of failure to appear by a person cited for a traffic violation," the panel warned judges not to skip on procedural pomp.
"The record must clearly and affirmatively show the defendant personally waived the right to a trial by jury; a waiver will not be implied from silence or conduct," wrote Judge Sandy R. Kriegler, joined in the unanimous opinion by Judges William C. Beverly and Patti Jo McKay. "[T]he failure to advise the defendant of the right to a jury trial and obtain a waiver thereof constitutes reversible error."
Now, thankful for his legal training, Foster awaits his bar results and a refund of $110, plus penalty assessments, from the dismissed traffic-violation charge.
"I learned a lot in law school," Foster said. "But law school doesn't teach you how to take a judge head on, how to file appellate briefs or how to leave no stone unturned. You learn that from working with professionals."
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