January 10, 2016
Ken Womble of Fault Lines won the Simple Justice award for blog entry of 2015 and that is fitting. Scott Greenfield has been complaining about the lack of vibrancy in the criminal blogsphere and Womble is a refreshing new voice. Let’s hope he, Andrew Fleishman, and others at Fault Lines can keep it up.
Greenfield is certainly right that the criminal blogosphere isn’t what it used to be. There are a few people still slogging away – most notably Greenfield, Jeff Gamso, and Matt Brown, all of whom also contribute to Fault Lines – but, let’s face it, it is not the same. One of the greatest losses for me was when Paul Kennedy of The Defense Rests announced that he would no longer be blogging. Other people have simply faded away.
The one bright spot in the blogosphere is the emergence of Fault Lines at Mimesis Law. I often say that you can explain everything in life through a Seinfeld episode, and in fact, Fault Lines draws its strength from a talented ensemble cast offering a range of different perspectives. Jerry Seinfeld is the star of the show — in my analogy, Greenfield would play this role — but the show would not have been nearly as good without also including George Costanza, Elaine Benes, and Cosmo Kramer.
Larry David recreated the George Costanza character in Curb Your Enthusiasm, this time playing the character himself, and although I enjoyed the show while it was on the air, his curmudgeonly loser could get a little tiresome. The beauty of Seinfeld – as with Fault Lines – is you get a lot of people in small doses. You don’t overdo it with any one character or voice. Of course I am not comparing Ken Womble to George Costanza. No, I think he is more like Newman.
November 18, 2015
The good news is that the government has a ton of these cases that it needs to prosecute. This means that it will probably offer most first-time offenders some type of diversion program in which they can do community service in exchange for getting the charges against them dismissed. It also means that, if the case ends up going to trial, it is very likely that the first time the prosecutor will look at the paperwork, interview the government’s witnesses and actually focus on the file will be on the morning of trial. In other words, the government may have the advantage when it comes to the resources it can throw at a case. But the defense will have the advantage when it comes to actually preparing for the trial. It is the defense who will take the time to know the facts and to be creative.
The prosecutor’s inability to focus on a case until the morning of trial is also the bad news for someone charged with a misdemeanor. Defendants who are not familiar with the criminal justice system tend to have this notion of a prosecutor not only focusing on their case, but also focusing on them as people. “Hmmm,” they imagine the prosecutor thinking as she reviews the file. “This is really a good person. It is hard to believe that he would do something like that. I think I am going to dismiss this case.”
I had a case recently in which my juvenile client was also the government’s witness in a sexual assault case. This resulted in me working directly with the prosecutor as we both sought to look out for the best interests of this little girl. It was a strange experience to be working with someone with whom I had a history of some pretty contentious litigation. It was strange to be on the same side. It was also strange for me to see this different side of the prosecutor’s personality – the caring, supportive, motherly side.
I assume prosecutors go through the same mental gymnastics that defense lawyers do to reassure themselves of the righteousness of their cause. And the difference, of course, in this case was that my client was the victim, not the criminal. In fact, most prosecutor don’t seem to see many of our clients as sympathetic individuals who have needs that should be accommodated. Or is this too simplistic?
Over at Mimesis Law, Andrew Fleishman mentions the particularly unrealistic expectations of DUI clients when it comes to what the prosecutor will offer. I couldn’t agree more. Many people charged with this offense seem to genuinely believe that the prosecutor will dismiss the charges against them just as soon as she reviews the file, sees that the transgression wasn’t all that bad and concludes that, besides, the suspension of the person’s driving privileges would be a tremendous and unwarranted inconvenience for the defendant given, say, his responsibility for driving his children to and from school.
These people have never stood in front of a prosecutor as this type of argument was made: “Well, they shouldn’t have been driving drunk then.” And they do not understand when you are not successful in making it.
November 13, 2015
* * * * *
“Darrell” was my typical client. Like all of my clients, he was my favorite. When this is over, Darrell told me one time, you are going to take me out for dinner. You can bring your wife. We will go to a nice restaurant and we will order some really expensive food.
Fifteen years old when I was appointed to represent him for the first time, Darrell sat in a metro car and grabbed someone’s cell phone, jumping out right before the doors closed. There are lots of cameras at metro stations. Darrell liked to wear colorful, distinctive clothing. Darrell’s sister had no hesitation about showing police to the pile of laundry in the back room where they could find his clothes. Police also tracked the GPS coordinates from the cell phone to Darrell’s school, to his home, and to the recreation center where he liked to hang out.
The government offered to dismiss the felony charge of robbery in exchange for Darrell’s plea to two misdemeanors: simple assault and theft II. We took the deal.
* * * * *
Working with adult defendants as a public defender in Philadelphia, I quickly learned not to tip my hand to clients when I wanted them to plead guilty. It often seemed that these clients, many of whom were struggling with mental health and addiction issues and almost all of whom distrusted their court-appointed lawyer, would do the opposite of what they thought I wanted them to do. It was like that Seinfeld episode: George Costanza finds success by doing the exact opposite of what his instincts tell him to do.
You are working for the DA, they would say to me. Or: You just want me to take the deal because it is less work for you.
So I would begin my meetings with them with some bravado. This is how we are going to beat the case, I would tell them. Only later would I mention – almost as an afterthought — that there was also a deal on the table. I would then start talking about the trial strategy again, but the deal tended to linger in their minds. And what if I take the deal, they might say? Oh, I would respond. Then you would be released from custody today and would begin a period of probation. But let’s get back to trial strategy . . .
* * * * *
Reverse psychology is not necessary with the kids. In fact, the problem with the juveniles is that they are usually too ready to take whatever the government offers them. For one thing, they lack the sophistication to understand the government’s burden of proof: It doesn’t matter if you did this or not, the government is still going to have problems proving it. For another, their parents – often the same people who would balk if they were the defendant and a deal were offered to them — are often too eager have their children plead. I am sick of coming to court, they tell me. We need to plead guilty and put this behind us.
It is a tremendous responsibility to have one of these children look at you with these big eyes: I’ll roll with you, Mr. Koehler. I’ll do whatever you tell me to do.
* * * * *
Darrell’s mother is mad at the court. You are making me out to be such a bad mother, she says.
Darrell’s voice wavers: Mom, he says. Stop. You are embarrassing me.
His mother has a long rap sheet. Also an addiction. It is always the parents, his probation officer says. The parents are always the real problem here.
* * * * *
Darrell got straight A’s in school and said he wanted to go to college. All the teachers raved about him. His only fault was that he did not do his homework. It wasn’t until I visited him at his home that I finally understood why.
My investigator Wayne forbids me from going into certain neighborhoods on my own. But in this case, all I needed was Darrell and his mother to sign a piece of paper. I figured it would be a surgical incursion into the neighborhood – a quick in and out. What I didn’t realize until I arrived at the cluster of low-rise apartments was that there were no house numbers on any of the buildings. I was going to have trouble locating his unit. The young men hanging out on an abandoned couch on a grassy quad were not particularly friendly – or helpful. And it got worse when I finally found Darrell’s apartment. The place was crowded with other men, apparently friends of Darrell’s mother. A court-ordered curfew requiring Darrell to be back in this dark, cramped, and run-down apartment by 6:00 pm every day wasn’t going to do him a lot of good. And where in this unit was Darrell going to do his homework? He didn’t have his own bedroom. There was no cozy little nook for him to curl up with a book.
* * * * *
You have closure when the charges against your client are dismissed by the government or when you take the case to trial and your client is acquitted. You and your client can thank each other. You wish each other luck.
It is different when the client is put on probation. No news is good news: it means that your client is complying with the terms of probation. Then one day, without event, the probation is over and the juvenile is no longer your client. In fact, if he or she picks up a new case, the juvenile will be assigned a different lawyer. You never say goodbye.
Darrell’s cell phone number no longer works and when I check with his probation officer, she tells me that she has lost touch with him and his mother. It is good that I don’t run into him at the courthouse. That would mean he picked up a new case.
Someday I will run into Darrell downtown and he will call out to me on the street. His hair will be shorter and there will be openness to him; no more brooding or posturing. He will tell me he has finished high school and is working at a steady job until he can go to college. I will make good on my offer to take him and his mother out for dinner. With my wife. At a restaurant of his choosing. Preferably one that is very expensive.
More like this:
November 12, 2015
THE WITNESS: Okay.
THE COURT: This is a trial in an American courtroom.
THE WITNESS: Okay.
THE COURT: And you have sworn to tell the truth and can go to prison if you don’t, okay? So within the last 30 seconds, you have told me two very different things. You have told me that she shoved him in the chest and that –
THE WITNESS: Okay, none of the –
THE COURT: Hold on, I’m speaking. You twice showed me with your hands pushing forward in a shoving motion that that’s what she had done. Now, you’re telling me that it may not be that she did that at all but something different, right?
THE WITNESS: Okay, I am not –
THE COURT: I instruct you to tell us in this trial the truth and what it is that you remember. Don’t tell us things that you don’t remember. Okay? You got it?
THE WITNESS: (No audible response.)
THE COURT: What’s the trouble?
THE WITNESS: The trouble’s the way that you’re addressing me.
THE COURT: Sir, I am instructing you that you’re under oath and you are to tell us what you remember, and that is my instruction to you. I now ask you to tell us did she push the officer with her hands on his body as you demonstrated?
THE WITNESS: Whether it was like this or whether I remember it being like that, I don’t know.
THE COURT: But she struck him?
THE WITNESS: Whether she struck him or moved like that, I don’t know.
November 4, 2015
I have just been appointed to the D.C. Superior Court panel for adult court-appointed cases. I was one of three lawyers appointed on a “provisional” basis. (Three other lawyers were promoted from the provisional panel to the full panel.) Those of us on the provisional panel need to serve a two-year probationary period before we can start doing felonies.
To date, I have done only court-appointed work on juvenile cases and criminal appeals. Although this work represents only a small percentage of my firm’s revenue, it is far more gratifying than my retained work. Most of my paid clients are first-time offenders. A diversion program is usually a good outcome for them. But it is not all that exciting as a lawyer.
The court-appointed work, by contrast, is where I develop as a lawyer. Many of the juveniles are charged with more serious crimes. And, without a “trial tax” for juveniles, there is usually no downside to taking a case to trial. It is also extremely rewarding to work with children. They listen to your advice. You feel as though you can make a difference. And sometimes you might even be right.
The appellate work is also a good experience. It doesn’t matter how often you work on a particular issue: You will never know it as well as you will after you have read every relevant opinion written on the subject, rolled it around in your mind for a while, and then briefed it. And it is very gratifying to see your name on a successful appeal: I am proud, for example, that I will be forever linked to D.C. case law related to constructive possession, the Confrontation Clause, and the Jencks Act.
But, alas, with the new Attorney General’s emphasis on diversion programs for children in trouble, the juvenile work has been drying up lately. You can spend an entire day hanging out in JM-15 without picking up a new case. And I have been drawing mostly minor misdemeanor appeals recently.
Besides, I am ready for a new challenge. As my investigator Wayne puts it, it is time for us to join the big leagues. The stakes are far higher there even when the issues are pretty much the same.
October 27, 2015
The 2015 list of lawyers eligible to accept court appointments in juvenile cases is now out. Chief Judge Lee F. Satterfield issued the order approving the list on October 23. The list will be good for the next 4 years. At that time, the panel will again be re-constituted.
The Family Court Panels Oversight Committee received 220 applications for one or more of the seven Family Court Panels. As for the Juvenile Panel, it recommended 52 attorneys, with 17 of these attorneys included in a “provisional” capacity. This is a reduction from the 54 attorneys previously appointed to the Panel. Two prior panel members – Martin Killingham and Gwenette Sales — chose not to reapply. Fifteen were removed. And fifteen new attorneys were added.
Here is the new list (* = provisional):
Megan Delaney Allburn*
Larry Banks Blackwood
Joel R. Davidson
Martha Louise Dickey*
Gene R. Donney*
Eduardo Raul Ferrer
Christopher J. Gowen
Geoffrey Oscar Harris
Kristin Nicole Henning
Aminata Fulani Nefetari Ipyana
Gary Phillips Jacobs
Stanley Jamison Koehler
Robert Michael LaBelle
Francis T. Lacey
Thomas Edwin Lester
Whitney Trevelyn Louchheim
Thomas Patrick Lydon
Howard S. Margulies
Madhavan K. Nair
Lisa H. Orlow
Lucy Vera Osakwe
Jennifer Ann Renton*
Seth Lee Schrager
Shetal V. Sutaria*
Julie Marie Swaney*
Wanda Denise Williams
Ronald G. Woodman*
October 22, 2015
It is true: I am sorry. I am sorry that she has been sick. I am sorry that her daughter has been sick. And I am sorry if I embarrassed her in front of the judge.
But I am not sorry for complaining to the court. The court needs to be aware of things. It needs to be sensitive to the many ways in which our neglect – even in extremely small matters – can impact the lives of criminal defendants.
I know this sounds sanctimonious. But I am guilty of it too. For those of us who have worked within the criminal justice system for a while, there is always the risk that we become inured to the petty injustices that are inflicted on a person who is accused of a criminal offense. I am not talking about gross miscarriages of justice. Instead, I am talking about judges who take the bench late. I am talking about defense lawyers who don’t return phone calls or who overbook their schedules. And I am talking about a prosecutor who neglects to perform all the necessary work so that a sentencing can take place as scheduled, thereby necessitating a return visit for the person to be sentenced. None of these things are that important in the grand scheme of things. But they are pretty important to the person who is affected.
Prosecutors have incredible power over the liberty of our clients. There is liberty with a capitol “L” – whether or not the person goes away for 20 years would be an example of this. There is also liberty with a small “l” – for example, whether or not the client is required to take a day off of work or school, as in this case, to attend another court hearing. However you write it, it is still a person’s liberty that we are talking about here. And with that power goes responsibility. That responsibility does not go away when you or a member of your family gets sick.
During training for the juvenile court-appointments panel, they warned us against becoming co-opted by the system. I couldn’t understand at the time how this could happen. I understand it now. There are many good things about the system in D.C.: judges who are knowledgeable about the law and who care about defendants, court clerks who are professional and respectful of all parties, probation officers who return phone calls. There are also prosecutors I respect and with whom I have developed good working relations. Perspective and a sense of humor are particularly important in this regard.
Sometimes these relations are damaged. I am sorry when this happens. I also understand that sometimes this is inevitable. As a result, I am only mildly surprised when my email to the prosecutor goes unanswered.
Mayhand v. U.S.: “A Statement is Not an Excited Utterance Unless the Declarant is Manifestly Overcome by Excitement or in Shock.”
September 30, 2015
D.C. Court of Appeals Judge Catharine Easterly writes what I think. The difference is that she finds the words that elude me. And the words she writes impact D.C. law. Her impact continues in Antoine Mayhand v. United States, ___ A.3d ___ (D.C. 2015).
The “excited utterance” exception to the hearsay rule is over-used. Prosecutors can get lazy: How hard is it to elicit testimony that the person making the statement was “excited”? This is what Judge Easterly means by “rote recitations that the declarant was upset or excited or afraid.” In addition, police officers are well-trained. They think ahead to trial. I love it when I see in a police report something along the lines of “the suspect then said in an excited utterance…” I can usually have some fun with that on cross-examination: How often do you hear a phrase like that in ordinary conversation?
The complainant in Mayhand never testified. Instead, the defendant was convicted of obstruction of justice on the basis of a 911 call introduced by the government. During the 17-minute call that was played for the trial court, the complainant narrated his continuing interactions with the defendant, at times interrupting his conversation with the 911 dispatcher to shout out angrily at Mayhand. Four times during the call, the complainant claimed that Mayhand threatened at some undetermined time to stab him.
The claims of the threatened stabbing were admitted into evidence on the basis of the excited utterance exception. The government also introduced evidence that, at the time of Mayhand’s arrest, he shouted out obscenities and accused the complainant of being a “snitch.” The officer testified that, at the time he came into contact with the complainant, the complainant was “trembling, had beads of sweat on his face, was constantly looking over his shoulder, was breathing quick, and had a visible vein along his neck” that was “pulsating very quickly.”
Judge Easterly emphasized what should be the “limited scope” of the hearsay exception: A “statement is not an excited utterance unless the declarant is manifestly overcome by excitement or in shock.” A “state of nervous excitement or physical shock” requires a “much higher level of emotional upset” than “mere vocal strain or indication of some anxiety.”
The judge continued: The “contemporaneousness of the statement with the excited event and the related ‘critical requirement of spontaneity,’ must be given equal and careful consideration.” Finally: The “totality of the circumstances must be scrutinized for indicia of self-awareness and reflection that are inconsistent with the ‘immediate and uncontrolled domination of the senses’ necessary to establish an excited utterance.”
August 28, 2015
I am doing a court-appointed criminal appeal, and I am cranky with the defense lawyer who tried the case. He won’t return my phone calls. He won’t send me the trial file. I have no idea why he appealed. And I find, upon reviewing the trial transcript, that he messed up the one potential area for reasonable doubt by asking questions on cross-examination that he should have left alone. Sometimes the unwitting defense lawyer can be the government’s best friend.
Our client was convicted of possessing drug paraphernalia. The case law is clear that, when it comes to implements with both legal and illegal uses, the government needs to prove something more than simple possession. This might be the presence of other things suggesting drug use – drug residue, for example. In some cases, the government even calls an expert to testify to possible uses of the device.
There was no evidence of any of that in this case. That is, of course, until my colleague began his cross-examination. Oh yeah, said the officer when prompted. I almost forgot: There was residue from a white powdery substance at one end of the straw. I field tested it and it came back positive for cocaine.
Because he won’t return any of my calls, I track the trial lawyer down in court. He tells me he filed the appeal because he wanted to cover his behind. I am still puzzling over this.
Now compare this guy with my friend and colleague Noah Clements. I had mixed feelings about being assigned a case for which Clements had served as trial counsel. What if I have to go with ineffective assistance of counsel?
Clements puts my mind to rest immediately. You need to claim ineffective assistance of counsel. This is the first thing he tells me while handing over the trial file.
As it turns out, there is no basis for an ineffective assistance of counsel claim. No surprise there. And, because Clements knows how to preserve the record, the brief is one of the strongest I have filed in a while.