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 to appeal a recent conviction.  This is good; I have been trying to expand my practice before the D.C. Court of Appeals. But then I found out that the person had been represented at trial by PDS. Stick with PDS, I told the person. They have the resources. And their appellate unit has some of the best legal minds in the city.

Alas, I can’t say the same thing about some of the court-appointed lawyers practicing in D.C. Superior Court. Many of these lawyers are first-rate:  smart, committed and creative in their defense of the city’s indigent. Many are also my friends.  But there are still exceptions, even after the panel was completely re-vamped – and winnowed down – last year.

My favorite story is the one in which I had to introduce my co-counsel to his client on the day of trial. I am looking for my client, the lawyer told me. He is the guy sitting next to you, I replied. But the complaint I hear most often is that the lawyer doesn’t return phone calls.

This seems pretty basic to me. You return every call right away – and you do this without the put-upon promise on your voice message that you will do it at your “earliest convenience.”  If you can’t do this, you need to start limiting your case load. If you can’t do this, you deserve to lose the client to a lawyer who will return the phone call.

You should also return phone calls from your colleagues, particularly when the call concerns a current or former client. Thankfully, when it comes to appeals, the clerk’s office of the D.C. Court of Appeals is now ordering trial counsel to transfer the trial file to the appellate lawyer.  Maybe this will make a difference. Because right now it often doesn’t get done. And I understand just how the client feels when it is now my calls that are going unanswered.

I had the pleasure the other day of serving as co-counsel with Jon Norris, who for me represents the gold standard in criminal defense in D.C.  Although our clients had been charged with minor misdemeanors, he treated the case as if the client had just paid him a fortune to represent the client in a major felony case.  This is service. This is the model we should all aspire to.

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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 issues of fact and law materially in dispute between the parties and fairly raised by the evidence and the party’s request.”

In Ben Saidi v. United States, __ A.3d __ (D.C. 2015), the complainant entered the defendant’s apartment with permission from one of the apartment’s occupants to investigate a dispute between the defendant and his two roommates.  The complainant mediated a peaceful settlement of the dispute requiring both roommates to leave the apartment.  When Saidi started to follow them out of the apartment, the complainant stepped in his way and told him to sit down.  Saidi punched the wall and told the complainant to “get out.”  When the complainant refused to comply with this order, Saidi punched him in the chest with a closed fist.

The defendant asserted a defense-of-property defense at trial.  Moreover, prior to trial, the defendant’s lawyer informed trial judge Ronna Beck that he would be requesting “specific factual findings under D.C. Criminal Rule 23(c).”  According to this rule, “[i]n a case tried without a jury the Court shall make a general finding and shall in addition, on request made before the general finding, find the facts specially.”

The D.C. Court of Appeals rejected the defendant’s argument with respect to the sufficiency of the evidence.  Specifically, although a defense-of-property defense was fairly raised by the evidence, the government was able to prove beyond a reasonable doubt not only that Saidi punched the complainant but also that (1) the complainant was not a trespasser in the apartment at the time Saidi hit him, (2) Saidi hit the complainant for a reason other than ejecting him from the apartment, and (3) even if Saidi’s purpose had to be get the complainant to leave the apartment, Saidi used more force than reasonably necessary to achieve that objective.

At the same time, because of the trial court’s failure to “make the requisite findings on all disputed issues of fact and law essential to the resolution of a defense-of-property defense advanced by Mr. Saidi at trial,” the Court remanded the case to Judge Beck for further proceedings.  Ideally, a party making a request for special findings under Rule 23(e) would identify the specific factual and legal issues that need to be addressed.  Ideally, the party would also “complain” about the “incompleteness of the trial judge’s findings” at the time of trial.  Had counsel done so in this case, “the trial judge likely could have addressed the shortcomings of her ruling and avoided the need for this appeal and a remand more than a year later.”  At the same time, the defendant’s failure to do either in this case did not relieve the trial judge of the burden of making specific findings “on at least enough of the disputed issues to resolve Mr. Saidi’s defense of property defense.”

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Three Voices in Writing

February 25, 2015 Appellate Practice

                        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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Job Security is Not Always a Good Thing

February 5, 2015 D.C. Superior Court

Sour.  Unprofessional.  And extraordinarily slow at everything she does. That is my assessment of the woman who sits at the reception desk on the 10th floor of the Office of the Attorney General.  She reminds me of everything I didn’t like when I worked for the federal government many years ago. I complain about the […]

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Accountability

January 29, 2015 Juveniles

My client’s grandmother stands next to me at the bar of the court.  She complains to me about the probation officer, about the education attorney, about the prosecutor, and about the judge.  I am sure that when I am not there, she is complaining about me too. The entire system has failed her grandson. My […]

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Police Officer as Expert at DMV Hearing

January 26, 2015 DUI and Driving Offenses

Q:  You are certified to administer the standardized field sobriety tests? A:  Yes. Q:  So you are familiar with the science behind the standardized field sobriety tests? A:  Yes. Q:  And you are aware that the tests have never been peer-reviewed? A:  Um.  I was not aware – HEARING EXAMINER:  What is the relevance of […]

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Refreshing Recollection at a DMV Hearing

January 22, 2015 DUI and Driving Offenses

DEFENSE COUNSEL:  Objection. HEARING EXAMINER:  Basis? DEFENSE COUNSEL:  I would ask that the officer testify from memory and not read from his report. HEARING EXAMINER:  Officer, are you testifying from memory or are you using the report to refresh your recollection? OFFICER:  I am using the report for recollection. HEARING EXAMINER:  Okay.  And are you […]

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