Build It And They Will Come

June 1, 2016

Guest Entry by Mary Anne Brush

Mindfulness. It’s become quite the buzzword, but what does it mean?  Jon Kabat-Zinn, teacher of mindfulness meditation and founder of the Mindfulness-Based Stress Reduction Program at the University of Massachusetts Medical Center, defines it as paying attention on purpose. It’s an effort to be ever-present with an experience in the moment.

When it comes to mindfulness in my own life, it’s my father who comes to mind as the defining influence. While as a poet and English professor he would have hated the word — he demanded precision in language and preferred verbs to nouns — he lived it to the fullest. He took joy in every task he undertook, whether he was planting a bush, carving a pumpkin or building a fire. He never viewed any chore, no matter how mundane, as a bother. It was all about the process, which may explain why he was still carving pumpkins at Halloween and running the sprinkler at the dead of night on our side lawn to create a skating rink even when his five children were grown and gone from the house.

He took his time with things, like selecting gifts. Sometimes he would visit a store two or three times to ruminate over a purchase. It drove my mother crazy. The year we spent in Germany while my father was an exchange professor at Freiburg University, it took him four months to decide on a car to buy. While my brother and I navigated the public transportation system to and from school every day, our father visited car dealers. His German was limited to auto-oriented vocabulary and the topic of cars dominated our dinnertime conversations.

All my life, I assumed my father had difficulty making decisions. Looking back on those four months he spent deciding which car to buy — he landed on a BMW — I realize now it wasn’t because he couldn’t decide. It was because he didn’t want to decide. Shopping for cars was a great joy in his life, so why rush the process? He was the least materialistic person I’ve ever known, but cars were his one bright and shiny indulgence. In fact, he visited our local Chevrolet dealership so often the owner paid his respects at the funeral home when he died. Yet in his lifetime, my father purchased only a handful of cars. So why shouldn’t he savor the pleasure each and every time?

He had no difficulty making up his mind when it counted. He was 35 when he met my mother, but he knew instantly she was the woman of his dreams; they were married within a year.

“Build it and they will come,” my brother said at our parents’ 40th wedding anniversary. He was referring to my father’s insistence, even past the age it was medically wise, on building a skating rink on our lawn, shoveling the frozen surface after each snowfall and setting the sprinkler to run at night when the temperature fell below freezing. My mother would lie awake wondering if she should check on him, worrying he had slipped and fallen and would freeze to death.

We believed at the time he was trying to recapture the magical rink of our childhood, with the ice-encrusted tree trunks lit by floodlights sparkling like crystals, our laughter clouding the air and our skates scraping the bumpy, imperfect surface. We thought it was an act of nostalgia. Looking back, I wonder if he was recapturing the magic not for us, but for himself, the way he would enjoy the order of his vegetable garden, or the crackle of the fire he built or the fresh scent of a well-cut lawn — mindful as ever of the wonder of the moment.

Reprinted from Grosse Pointe News

What It Means To Be Heard

May 27, 2016

The complainant is having a melt-down in the hallway. It is not my case so I have no idea what is going on. All I see are two young prosecutors trying to calm her down. The more they talk, the angrier she gets. The situation seems to be getting out of control when a U.S. Marshall arrives.

He is an older gentleman, a supervisor, for the U.S. Marshall Service. He strolls over. He sits down with her. And he listens. She calms down immediately.

Sometimes all we want is to be heard.

The same dynamic applies to plea bargaining. It is not only that there is 100% chance of being found guilty if you accept the offer. It is also that you never have a chance to tell your side of the story.

I learned early on at the public defender’s office in Philadelphia not to get invested in a guilty plea, no matter how favorable I thought it might be. During a review of the client’s prior criminal history, the client never seemed to regret a conviction after trial. Yes, the client would say, I did my time for that. Instead, what did seem to bother the client were the charges he or she pled to. My lawyer talked me into taking that deal, the client would say. We should have gone to trial.

Our duty as lawyers is to give the best possible advice to clients. As Rule 2.1 of the D.C Rules of Professional Conduct puts it, we are obliged to “exercise independent judgment” and to “render candid advice,” no matter how “unpalatable” that advice may be. At the same time, there is a real value to the client in having his/her constitutionally mandated day in court, even if the case ultimately results in a conviction.

I was chatting about this with a colleague yesterday, and she told me she has had similar experiences to mine. I still remember the expression on the face of a client after a trial in Philadelphia. We had turned down an offer of probation and he was ultimately convicted and sentenced to almost 2 years. Who knows how he felt about his decision the next morning? Or the many mornings that would follow. For that moment anyway, as he thanked the judge and was led out of the court in handcuffs, he had the same look as the woman who was calmed down by the U.S. Marshall. It was the look of someone who has been heard.

A Criminal Defense Lawyer Gets Mugged

May 3, 2016

View from Park AvenueI am hit so hard that my boot flies off as I fall backward. The boot slides across the bricks out onto the street. Our dog scampers after it.  She thinks we are playing.

I should have seen the three young people – two males and a female – standing on the corner in the dark waiting for me.  But I am lost in my thoughts, and they are upon me before I can do anything.  Damn, I think.  I can’t believe this is happening.

Wayne my investigator has told me I should carry a single $20 bill in my pocket.  You hand this to them, he explained, and send them on their way.  I am already regretting that I did not take his advice.

I stay on the ground.  They calm down as soon as it becomes apparent that I am not going to put up a struggle.  It is like putting your hands in plain sight on the steering wheel when pulled over by the police.  The adrenaline is already leaving our bodies.  The dog uses this opportunity to sniff around.

I have represented so many juveniles in crimes exactly like this one that I feel as if I know these kids. Tough talk. A burst of violence. And some swagger. Deep down, however, most of them are really sweet, vulnerable children.

The tall one, the one who hit me, leans in over me. Give it up, bitch, he says.  Resigned, I take out my wallet and open it up, showing him that I am handing him all the cash.  I don’t want to replace the credit cards.  I don’t want to spend another day at the DMV.  He pockets the cash and starts to leave. Then the other male steps up. And the phone, he says.

I collect myself as soon as they run off. A neighbor walking his dog comes over to make sure I am okay. There is swelling on my face, and my body will be sore for a couple of days.  But the only real damage is to my dignity.

Back at the house, using my wife’s phone to call 911, I pick my words carefully. How many times have I replayed one of these calls as a criminal defense attorney looking for any hesitation, any inconsistencies, any weaknesses in the government’s case?

My neighbors are upset when they learn that neither I nor the police used the GPS on my I-Phone to track my assailants’ movements while they were still in the neighborhood.  At the same time, I know this case will never go to trial.  If I have ever questioned the accuracy of eyewitness identifications from a professional standpoint, I now know it from first-hand experience.  There is no way I could ever identify any of the young people who assaulted me.  The police officers who interview me seem to understand this. Cross-racial identifications are particularly problematic.

I am walking the dog again the next morning when I run into our neighbor from a couple of doors down. She has read about the assault on the neighborhood listserv. She uses the GPS location on my stolen phone to track its location.  It is now moving back and forth at an intersection in Baltimore County about 10 miles away. She also hails down a passing police officer and, when he refuses to do anything about it, contacts our recently re-elected councilman to urge action.

A group of three juveniles with the same gender mix have been involved in all sorts of mischief recently in our neighborhood. So I understand the need for police intervention. We need to protect our home values and our safety. I also admire my neighbor’s faith in the criminal justice system. But I know better. Even if the Baltimore City police were able to coordinate with the Baltimore County police and track down whoever is now in possession of my stolen I-Phone, without an identification from me, the most anyone could ever be charged with is the criminal offense of receiving stolen property. The chances are also pretty good that my phone is now in the hands of a third party.

My neighbor continues to track my I-Phone for the rest of the day. The signal goes silent at around 3:00 pm.  She picks up the signal again at around 3:30 and is pleased to see the phone heading down I-83 toward our neighborhood.  Aha, she thinks.  Now we got you. Then she realizes the person she is now tracking is me.

Having spent a couple of hours at the Apple store in Towson, I am happy to have my new I-phone. I am moving on. If there is one thing I have learned from this experience, it is to listen to Wayne. The next time I walk our dog at night, I will stay in open, well-lit areas. I will keep my wits about that me.  That is the cost of living in a city like Baltimore.  I will also carry a single $20 bill.  I will hand it to them.  I will send them on their way.

Feedback from Jurors After Trial

April 27, 2016

Graffiti red bicycleThe jury is still deadlocked after three days of deliberations, and the judge declares a mistrial. She releases the jurors. Anyone interested in answering questions from the lawyers, she tells them, should stick around in the jury room.

All 12 jurors are there when the four of us lawyers – two from the government and two from the defense – go back to see them. Apparently they do have something to tell us.

It takes us a moment to transition from the formality of the trial but eventually they begin to open up. We have been studying their expressions from the counsel table for a couple of days now, trying to discern any clues as to their leanings. Suddenly they are an open book, and we find out that we have been right in some cases but wrong in even more. We knew that the older black gentleman was going to be on our side. But we are surprised that the other holdout was a young white female. And, as it turns out, the defense had no support from the middle-aged white female – the medical doctor — we had thought might not be too impressed by the government’s case.

Juries can be difficult to read. Or maybe it is just me that is not very good at it. I think back to a jury trial I did a couple of years ago in a DUI case. The tall white guy is clearly on our side, I told my client. The guy listened intently to all the testimony, particularly during cross-examination, and he kept nodding during my closing argument.  In the end, he was the foreman of a jury that convicted my client.

We ask the jurors first for the count. Then we turn to the specifics.

Three of us lawyers are relaxed. We are interested in hearing what the jurors have to tell us. The case is likely to be retried. We also want to improve as trial lawyers. But the lead prosecutor is still arguing his case. He quibbles with the jurors when they do not agree with him on the significance of certain facts. My colleague and I joked after his closing argument that we should have bet on how many times he would point at our client.

Afterward, as we all file down the hallway behind the courtroom to the exit, I walk next to a young black woman who had been a question mark for the defense.  Completely impassive during the trial, she is now animated. The two government lawyers lean in, just in case I am about to glean a final gem of insight. I thought it was funny, she tells me, that your client seemed to sleep through much of the trial.

I smile and wave this off as we walk out into the court hallway and go our separate ways.  It doesn’t matter that she is mistaken. What she thinks is no longer important.

The SFSTs Have Never Been Peer-Reviewed

April 14, 2016

slip carefullyQ:            Based on your training, officer, you are aware that the SFSTs have never been peer reviewed, right?

A:            What’s “peer-reviewed”?

Q:            You do not know what “peer review” is?

A:            No, you tell me.

Q:            I’m asking the questions, sir.

A:            And I’m telling you I don’t know. If you want me to answer that, you’re going to have to elaborate. Otherwise I don’t know what you are asking.

Q:            I see. Fair enough. [Pause.] Officer, did you not use the term “peer review” on direct examination?

SMITH: Objection.

THE COURT: Sustained. Move on, counsel. The officer has testified he doesn’t know what peer review means.

Q:            Officer, is it fair to say that you’re not an opthamologist or an optician or an optometrist?

A:            Absolutely.

Q:            Fair to say that you have no formal education in any science-related fields.

A:            None.

Q:            You testified that you have administered the HGN test 400 to 500 times?

A:            Yes, sir.

Q:            And you have made arrests based on those administrations?

A:            Yes.

Q:            Is it fair to say that your administration of the test has never been independently verified?

A:            I don’t follow you, sir.

Q:            Is it fair to say that there is no way of telling whether or not your decision to arrest a suspect based on the HGN was actually the correct one?

A:            You mean through a blood or breath alcohol content?

Q:            Yes.

A:            In many arrests that I have made, the fact that the subject was impaired has been verified by either urine tests or breath results that show a level of impairment consistent with my conclusion that the test subject had nystagmus.

Q:            Well, let me ask you – have you ever been wrong?

A:            No.

Q:            400 to 500 arrests?

A:            Yes.

Q:            Goodness. You should be in the HGN hall of fame. That is better than –

SMITH: Objection, your Honor.

THE COURT: Sustained.

Q:            Officer, how do you tell the difference between simple nystagmus and exaggerated nystagmus?

A:            I don’t understand the question.

Q:            You don’t know what nystagmus is?

A:            I have been trained to look for an involuntary jerking of the eye. Exaggerated nystagmus and all those other things, those are your words, not mine.

Q:            Okay. You learned in your training that there are in fact many causes of this involuntary jerking of the eye, right?

A :            Yes.

Q:            Okay. You learned that in fact caffeine can cause nystagmus, right?

A:            At this moment, I don’t recall.

Q:            And how about nicotine?

A:            Don’t recall.

Q:            Tranquilizers?

A:            Let me put it to you this way, sir. I’m going to tell you, you can go down the whole list, and I’m going to tell you that I don’t recall, because the only one I’m going to speak about is in relation to the consumption of an alcoholic beverage.

Q:            So you see nystagmus and you assume intoxication?

A:            That is what I am trained to do, sir.

Q:            Nystagmus at less than 45 degrees. You see intoxication?

A:            Yes.

Q:            Nystagmus at maximum deviation. Intoxication?

A:            Yes, that is what I am trained to do.

Second Fiddle at a Jury Trial

March 8, 2016

It is not easy sitting second-chair at a trial when you are used to running the show yourself.

Recently appointed as a provisional member of the panel to represent indigent criminal defendants in D.C., I need to second-chair two jury trials before I can be considered for inclusion on the full panel.  So I go to the lawyers I most respect to offer my services.  I want to punch the ticket.  I also hope to learn something.

Noah Clements brings me in on a felony PCP case.  This is the ideal situation for me.  Clements is a friend and colleague, someone with whom I often exchange trial strategies and tips. Clements is humble in a way every lawyer should be:  He knows that there is always so much more to learn.  He is also the person who teaches the D.C. Superior Court training course on challenging expert testimony in a drug test. In this particular case, the court has already held three evidentiary hearings on his demands for additional discovery.  The government has been fighting him every step of the way.

Tall and white-haired, Clements looks like a lawyer.  He is also very good with the client.  He is patient and relaxed.  He explains himself without being condescending and, although he is firm when he needs to be, he listens to the client.  He clearly understands his role as agent and advocate.

That said, it is still an awkward situation.  I think back to my days as a middle-aged intern at the public defender’s office in Philadelphia. Whenever I joined an inevitably younger-looking PD in the ante-room outside the courtroom to convey an offer to a client, the client would often look to me – the distinguished older looking man – for advice. “Go with what your lawyer is recommending,” I would say, trying to shift the attention back to my colleague. “He knows what he is doing.”

This is not a problem with Clements.  And the client is fine with me joining the legal team.  Still, it is difficult to sit at the counsel table during the suppression hearing without an ability to affect the outcome.  My intern days are over.  I have gotten used to being in charge.

The client passes numerous notes to Clements during the officer’s testimony, and I don’t want to serve as a further distraction.  Besides, Clements has things well in hand.  The judge takes a recess to consider a couple of points of law, and, although it is a close call, he ultimately rules against us.

The suppression motion lost, our client agrees to a stipulated trial and is found guilty without a jury trial.  Clements is sorry I will not get to punch my ticket this go-round, and he promises to bring me in on his next jury trial. Clements is a gentleman.  I will hold him to that commitment.

On the Benefits of a Flat Fee Agreement

March 5, 2016

BaltimoreGraffiti.3Criminal defense attorneys often use flat fees; that is, we charge a set sum to cover the entire course of a representation. This includes arraignment, negotiations with the prosecutor, any legal research that needs to be conducted, preliminary hearings and status hearings, trial, and, if necessary, sentencing. As Mark Bennett has put it, the flat fee is at once the minimum fee for a representation as well as the maximum: “If we go to court the first time and, for whatever reason, the case is dismissed, I don’t owe you any money back. On the other hand, if we spend a year litigating and then wind up in a two-week trial, you don’t owe me any more money.”

The flat fee arrangement, from my standpoint, is a win-win for both parties. From the lawyer’s perspective, you have the satisfaction while working on a case that you are being diligent on behalf of the client, not simply running up the tab. You do not need to track your time. You do not need to second-guess yourself on whether or not particular work will be a good use of the client’s money. Financial considerations do not skew other important decisions, such as whether or not to take a particular case to trial. The client is protected if the case turns out to be long and complicated. And if the case is disposed of quickly (the first goal in any criminal case), you both benefit – the client because the case is over and you because, having earned your fee on this case, you are free to close out the file and move onto other work.

I charge what I believe is a fair flat fee. After 7 years of private practice, I have a pretty good idea what work will be involved with any particular case. This protects me. It also makes sure that I am not overcharging a client. If it is a first-time offender in a misdemeanor case, for example, the client is likely to be offered some type of diversion program. I occasionally negotiate my fee down a little bit, depending on the client’s circumstances and the facts of the case, but I agree with those who warn that the clients who focus too much on the fee often turn out to be problematic.

I have also had people offer to pay me more so that I will work extra hard. The outcome is really important to me, they say, and I don’t want you to spare any expense. I can only laugh when this happens. Thank you, I tell them, but once I enter my appearance in a case, you get the same level of representation no matter how much you have paid me. This would be my ethical and professional responsibility even if you had paid me nothing at all.

High v. U.S.: Not Every Cross Word Directed at a Cop is Criminal

January 28, 2016

I tried to argue a while back that, when it comes to D.C.’s statute on Threats to do Bodily Harm, parking enforcement officers should be considered to be particularly immune to threats. After all, they are used to dealing with angry people who have just found a ticket on their windshield. Such officers, I would assume, are also trained both on ways to defuse the situation and on personal coping methods in the face of frequent abuse.

The trial judge did not agree with me, and, in fact, the D.C. Court Appeals seemed to lay out special protection for law enforcement officers in In re S.W., 45 3d 151 (D.C. 2012), which is otherwise a very good opinion. Now there is Milon C. High v. United States, __ A.3d __ (D.C.   2015).

The defendant in High was arrested for unlawful entry. While seated on the curb in handcuffs, High “glared” at the police officer who was asking him questions. He then said to the officer: “take that gun and badge off and I’ll fuck you up.” A few seconds later, he added “something to the effect of, too bad it’s not like the old days where fucking up an officer is a misdemeanor.”

In an opinion written by Senior Judge Vanessa Ruiz, the D.C. Court of Appeals reversed High’s conviction for attempted threats. The court held that “simply because certain words are addressed to a law enforcement officer who is performing official duty does not necessarily mean that the utterance constitutes a criminal threat.”   High’s statements “are most aptly described as an expression of exasperation or resignation over the fact that the appellant had just been arrested by police officers for whom his family had ‘bad feelings’ based on prior experience.”   The court continued:

Appellant’s first statement – “take that gun and badge off” – is not a direct challenge or a “dare” to Officer Smith; appellant is not taunting the officer, or directly attempting to goad him into hand-to-hand combat. Rather, appellant is communicating that if Smith were not a police officer, then appellant would, in his words, “fuck [him]up.” Similarly, appellant’s second statement – referring with nostalgia to a time past (“too bad it’s not like the old days”) when assaulting a police officer was a misdemeanor – recognizes the increased penalty associated with inflicting physical harm upon a law enforcement officer as yet another reason not to do so. The statements convey both appellant’s anger at being arrested (in his view unjustifiably) as well as his appreciation that he is constrained by the officer’s status and potential criminal penalties from doing anything about it. Read together, appellant’s statement amount to a feisty lament, an “expression of [his] frustration over his arrest, rather than a serious threat of bodily harm” . . .

Nor do appellant’s statements reasonably convey a desire or ability to inflict serious injury in the future. Looking solely to the words spoken, it would be unreasonable for an ordinary hearer “to presume that appellant’s statement carried an implied future threat” that appellant would “hunt down” and visit physical harm on Officer Smith at a later time . . . Nothing in the statements uttered by appellant is a prediction or speaks to the future.

A New Perspective on Representing Indigent Criminal Defendants

January 26, 2016

Three months into my court-appointed work in D.C., I now have a completely different perspective on representing indigent criminal defendants.

At the time I quit my job as a public defender in Philadelphia after a three-year stint there, I was pretty burned out. I was also jaded when it came to the people we represented. Many of the people had serious mental health and addiction problems. More importantly, many of them also hated us. This was difficult to take, particularly when combined with the crushing caseload we had at the public defender’s office. Looking back on it now with some perspective, I can’t believe I ever had to represent 20-30 misdemeanor clients in a day, particularly when I was meeting most of them on the day of trial. It was only slightly better for clients charged with felonies: Preparation time and an opportunity to meet the clients the week before their trials were scheduled. And our caseload usually ran about seven or eight clients a day during trial week.

It was thus with some trepidation that I joined the court-appointed panel in D.C. I was expecting much of the same animosity. I was wrong. So far, all of my clients have been polite and respectful. They have come to court on time. They have listened to my recommendations, if not always taking my advice. The only real differences between these client and my retained clients are that: (1) the court-appointed clients are much more blasé about the charges facing them, particularly when it comes to the possibility of jail-time, and (2) the retained clients are much easier to reach. I have had retained clients who have called me every day during the life of the case. For obvious reasons, cell phone plans for court-appointed clients are often allowed to lapse.

It is not that indigent defendants are nicer, more respectful people in D.C. It is that the entire court system is vastly superior. The reason people in Philadelphia are so cranky, so disagreeable, so distrustful is that they know they are being screwed.

With some important exceptions, the judges in Philadelphia often took the bench late and then hurried through the docket. Many of them were disrespectful of our clients and the people who represented them. I remember one judge in particular who could never bring herself to actually address us by name. It was “Mr. PD” this and “Ms. PD” that, always uttered with disdain. The message this sent to our clients about the quality of their legal representation was unmistakable.

Even some of the better judges gave us a hard time about delaying the court’s proceedings. They did not seem to appreciate the pressures we were operating under. We did not get plea offers until the morning of trial in the misdemeanor room, and things got worse if the prosecutor arrived late or was preoccupied with other things. This meant we had just a few moments to convey these offers to scared and confused people, many of whom were uneducated and unsophisticated, all the while we were being approached by other people who wanted to talk about their case. And the judges complained to us if any of this delayed things.

Court personnel were even worse. “Fat Danny” played spider solitaire on his computer no matter what else was going on in the courtroom. When it was discovered that he was scheduling hearings for days in which he would not be in the room, we all assumed that he would finally be fired.   He was sitting at this desk when we arrived back in court on Monday. He is probably still there. Bobby from Room 803 would ignore lawyers trying to get his attention so that he could chat about the Eagles with the stenographer. Effi and April from domestic violence would make you pay if you did not make pleasantries with them first. The message was clear: In many cases, it was petty, mean-spirited clerks, not the judges, who ran the courtrooms.

As for probation officers, it was not that they did not return your phone calls. It was that, because their voice mails were always full, you could not leave a message to begin with.

Many of the prosecutors were young people right out of law school who were intent on making a reputation securing misdemeanor convictions. Standing next to one particularly ambitious assistant district at preliminary hearings so that I could look over her shoulder at her file, I was able to catch her many times making misrepresentations to the court.

It is very different in D.C.  Mani Golzari is a former colleague who is now a supervisor at the D.C. Public Defender Service (PDS). We came down to D.C. around the same time and we used to love to compare our respective experiences. The difference was remarkable. It is not only that judges here take the bench on time, are patient and respectful of our clients, and know and apply the law; that probation officers seem to genuinely care about our clients; and that court staff are professional, efficient and respectful of everyone in the room. It is also that higher quality legal assistance leads to more satisfied clients. Without the acrimony and suspicion, these clients who are much easier to deal with. More importantly, you get better results on their behalf.

This is a simple question of the level of resources devoted to indigent criminal defense in the two jurisdictions.

The public defender’s office in Philadelphia uses a “horizontal” system of representation. One lawyer represents the defendant at the preliminary hearing, another represents them at arraignment, and two or three different lawyers might be assigned to their cases during trial depending on how many times the case is continued. Each time the client has a court appearance in a felony case, a different lawyer will show up at the jail to interview him or her. Who are you, the client wants to know. And what happened to the last lawyer who represented me?

To use a basketball analogy, it is a zone defense as opposed to man-to-man.

It is not that the Philly defender believes that a horizontal system achieves better results on behalf of the client than a system in which the same lawyer represents the client throughout the life of the case – “vertical representation”.   It is that with the woefully inadequate resources that are devoted to indigent defense in Philadelphia, the defender has no alternative. It is too inefficient to have different lawyers going to multiple court rooms to handle all their cases. Instead, one or two public defenders assigned to a particular room handle all of the cases that come through.

As a result, apart from the problems you have with confused clients who are often meeting the lawyer who will be representing them on the same day as trial, you get different inefficiencies.   I used to re-assure angry clients that it is good to have multiple lawyers looking at the same case. One might see something that another has missed. But who was I kidding?

It is, after all, incredibly inefficient to lots of different public defenders preparing for cases that are often continued. This meant that the public defender who had the case continued would have to write up his/her notes so that another public defender could begin his/her preparations. And, of course, a system is only as good as the people who administer it. I sometimes felt that I spent as much time tracking down lost files or re-creating them from scratch as I did actually preparing cases for trial.

I have crowed here many times about what a class organization PDS is. It is true: In the seven years I have practiced in the District, I have never encountered a public defender I did not think was first-rate.   But it is not only the higher quality of lawyers PDS is able to attract (they never would have hired someone like me straight out of law school). It is also that the District devotes the resources that PDS needs. Using a system of vertical representation, public defenders here have the time and support they need to prepare for their cases. So do court-appointed lawyers. And this leads to happier clients who can expect better results.

The Pros and Cons of Introducing Character Evidence in D.C.

January 23, 2016

red black and creamWhen I started my practice in 2009, I asked an old-timer – somebody who had been practicing in D.C. for over 25 years – how to introduce character evidence in D.C.   I have no idea, he replied. Because I have never done it.

Many indigent criminal defendants have long criminal histories.   It is much easier to get into trouble with the law, for example, when you are homeless and scrounging for food. Still, not all poor people have been in trouble with the law, and I was surprised by the lawyer’s response. Because a defendant can be acquitted on the basis of good character alone, failing to use this tool when it is available to you sounds a lot like malpractice/ineffective assistance of counsel.

Many of the rules on character evidence turn our traditional assumptions about the law upside-down. Normally, you are not allowed to introduce such evidence. It is not that the evidence is not relevant. It is that circumstantial evidence pertaining to a person’s personality as an indication as to how the person may have acted on the day in question is that it might be too relevant and too persuasive, thereby leading the finder-of-fact to base a determination on that evidence alone.

One of the exceptions is for the accused in a criminal trial. Based in large part on the so-called “mercy rule,” which reflects a desire to counterbalance the imbalance of power faced by an individual who finds him- or herself confronted by the enormous power of the state against him or her, the exception allows the defendant to introduce a character evidence to show that he or she acted in accordance with that trait on the day in question.

There are also other anomalous results when character comes into play. Not only is a witness who is called to testify on behalf of the defendant’s reputation for good character allowed to provide hearsay testimony (traditionally a big “no-no” in any trial), the witness is in fact precluded from anything but hearsay testimony. Finally, the introduction of character evidence is one of the only situations in which the rules of evidence permit conclusions from a witness on a subject in which he is not an expert.

Of course you have to careful. Once you have introduced such character evidence, you have opened the door for the government to bring in all sorts of bad things about your client.

If I was surprised by the old-timer’s response to my question on the protocol for introducing character evidence in D.C., I was also surprised by the government’s response when I introduced this evidence during a recent trial. The Assistant U.S. Attorney was fairly new, with a more seasoned prosecutor there at the table, and she seemed thrown off when I launched into the colloquy with my character witness. In fact, I heard her supervisor whisper to her that my entire line of questioning was objectionable. She waited until my client finished. Then she moved to strike the entire testimony. It is improper bolstering, she told the court.

I was also taken aback by the judge’s reaction. “Counsel?” she said, looking over at me. Had I messed up the protocol?

“It is proper character evidence,” I responded.

The judge shrugged. “Overruled,” she said.

More like this:

The ABCs of Introducing Character Evidence in D.C.