Solo Practitioners Don’t Have A Jackie Frankfurt

by Jamison Koehler on March 26, 2015

We had a tremendous support network at the public defender’s office in Philadelphia. There were social workers and mental health professionals. There were administrative staff focusing on probation, parole, and the expungement of criminal records. If you had a question about a particular point of law or opinion, there was a whole group of appellate lawyers at your disposal. And if there was ever a new development in the law, we were all provided with a handy-dandy fact sheet with tips on how to incorporate this new development into your practice. I remember the “paid lawyers” looking at me enviously every time I pulled out something like that in the courtroom.

The lack of this support network is, I have found, one of the greatest challenges to solo practitioners doing criminal defense:  We are out there all alone.  At least that’s the way it can sometimes feel.

In some respects, this is liberating.  My first career was with the federal government.  You couldn’t lift a finger there without “clearing” everything with a million other people first.

In most other respects, however, you are at a tremendous disadvantage.  So too is your client.  If there are four lawyers listed on the government’s response to an appeal and multiple supervisors in their chain of review, I have trouble getting one read of a brief I have written.  I can usually get my wife to take a look.  And my colleague Margaret Cassidy is my go-to-person for many questions as we both figure these things out together. But Margaret and my wife are busy with their own work.  I can only impose so often.

Fortunately, there is D.C.’s Public Defender Service (PDS).  Unlike the public defender’s office in Philadelphia, which had what I can only describe as an uneasy relationship with the private defense bar, PDS views as part of its mission the leveraging of its talents on behalf of the city’s indigent defendants.  And, of course, when you are talking appeals, you are talking about the deputy chief of the PDS appellate unit, Jaclyn Frankfurt.

Although I know her name from reading years of cases, I have not actually met Jackie in person.  I wouldn’t recognize her if I came across her on the street.  But she is pleasant and responsive on the phone.  She knows her stuff, of course.  She is committed in that non-sanctimonious way PDS lawyers seem to have mastered.  (This is different than the smug, world-weary, “I-am-more-committed-than-you” attitude that seems to afflict so many public interest lawyers.) And she is encouraging.  ”Good luck,” she says me at the conclusion of an email correspondence with respect to my latest appeal.  ”I look forward to broadcasting your victory on the PDS blog.”

Jackie has heard the facts of this particular case.  I am thinking she must be somewhat of an optimist.

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And Sometimes We Get Outlawyered

by Jamison Koehler on March 17, 2015

We like to think that the fate of our case will rise or fall depending on our lawyering. Placing us at the center of everything, this perception helps our egos.  It also suggests complete control:  We are guaranteed victory if only we work hard enough.  And that is reassuring.

Sometimes, however, we win not because of our lawyering but despite it.

I had that situation last week in a civil protection order trial. The facts were on my side.  I had a much better hand to play legally.  And my opponent’s client did not do himself any favors on the stand. For example, when confronted with the fact that he bought a first-class plane ticket to Denver so that he could confront his former girlfriend and her new beau at the boarding gate (it is a federal crime to use fraud or false pretense to get through security at an airport), he claimed that he considered actually making the trip to Colorado. Really? With a one-way ticket and no luggage? Yes, he testified. I was upset, and I hear Denver can be very nice at this time of year.

Although the judge ultimately granted my request for a protective order, any personal satisfaction about the outcome was dulled by my realization that I had been outlawyered by my opponent.  Despite good facts and case law, along with plenty of time to prepare, I struggled with direct.  And my cross-examination often fell flat. By contrast, my opponent was articulate and on-point with his questioning, and, although ultimately unsuccessful, he came up with some clever arguments for closing.

Maybe I was complacent knowing that I had such a good hand to play. But that is no excuse:  A loss under these circumstances would have been unforgiveable. The fact is, I came out of the proceeding with more respect for my opponent. I am not sure that somebody sitting in the gallery and assessing my performance would have come to the same conclusion.

The law is bigger than I am.  Sometimes even a win can be a humbling experience.

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The Coin, Rubbed Back To Newness

March 13, 2015 Miscellaneous

Our son is home from college. The front door opens and there he is:  Tall and slender, like Telemachus standing in the doorway of the shepherd’s hut. There is the pile of clothes in his bedroom, the groan of pipes as he turns off the shower every morning, and the male voice rumbling from the […]

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Eliminate Adverbs. Improve Your Writing.

March 8, 2015 Appellate Practice

We all have our pet peeves when it comes to the English language. I had an English teacher in college who offered a $1 million reward to anyone who could find a single instance in which use of the word “utilization” would be preferable to “use.”  As far as I know, this reward is still […]

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Court-Appointed Lawyers Who Are Too Busy Should Lighten Their Case Load

March 5, 2015 D.C. Superior Court

I will not take cases away from the Public Defender Service. How can I take someone’s money when that person is already getting top-notch legal representation for free? I am trying to make a living. But I also have to live with myself. The other day, for example, I got a call from someone seeking […]

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Saidi v. U.S.: No Special Findings in Defense-of-Property Case

March 3, 2015 Defenses to Criminal Charges

You are allowed to use a reasonable amount of force to protect property.  This is true “regardless of any actual or threatened injury to the property by the trespasser.”  Moreover, upon timely request with sufficient clarity for special findings under D.C. Rule of Criminal Procedure 23(c), “the trial judge must articulate findings specific to all […]

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Three Voices in Writing

February 25, 2015 Humor

                        H/T Ken White

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#Serial: No Miscarriage of Justice in the Adnan Syed Case

February 12, 2015 Current Events

Over at our private family page on Facebook, we have been having a lively discussion about Serial, the This American Life podcast that investigates the 1999 murder of Baltimore County high school senior Hae Min Lee. Lee’s former boyfriend Adnan Syed is currently serving a life sentence for her murder.  The 12-episode podcast investigates allegations […]

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I Thought You Might Try Harder If You Thought I Was Innocent

February 7, 2015 Defenses to Criminal Charges

When you go to a doctor for treatment, do you omit a critical piece of information about what is ailing you? Of course not.  The doctor’s diagnosis will only be as good as the information it is based on.  So why would you ever lie to your criminal defense lawyer?  Why would you tell her […]

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Gayden v. U.S.: Interpreting the “Resist” and “Intimidate” Provisions of D.C.’s APO Statute

February 7, 2015 Assault

In Cheeks v. United States, a case issued a couple of months ago, the D.C. Court of Appeals interpreted the “interfere” provision of D.C.’s Assault of a Police Officer (APO) statute.  (It is illegal under this statute to assault, resist, oppose, impede, interfere with or intimidate a police officer who is performing his official duties, […]

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