Baltimore Was Never Burning

The pizza delivery guy is really upset. He has $250 worth of pizza in the backseat of his car, and his next destination – after leaving our house – is smack dab in the middle of the riots. “I can’t believe my boss,” he tells me. “He is an idiot. He agreed to be paid in cash for this order. There is no way I am ever going to get that money.”

For a moment I can’t help thinking of this poor guy handing out pizzas to a group of young people jumping on police cars at the intersection of North and Pennsylvania Avenues trying to collect his money. I am also reminded of that scene in Bananas in which Woody Allen goes into a restaurant and orders 1,000 sandwiches for his army – with mayonnaise on the side.

And then it occurs to me. I am not the only person with the telephone number of our local pizza place on speed dial. And the other person – my pizza-loving wife – is sitting in a church basement with other community organizers just a block from the epicenter of the unrest. It is she who has ordered the pizza. And, notwithstanding the delivery guy’s concerns, it is she who does in fact pay for it.

* * * * *

In a comment to yesterday’s post, Tyler Suchman sums up the City of Baltimore better than I ever could:   “Baltimore strikes me as a city with strong community leaders and an overwhelming desire to rise above the unrest. Clearly the vast majority of citizens want to protect the city in which so many people have invested their blood, sweats and tears.”

Call me a sap but I have a tendency to look for the positive in every situation. On the morning of September 11, 2001 in D.C., with smoke from the Pentagon rising over the river and reports that other planes were still on their way, I witnessed the greatest traffic jam I have ever seen, caused by all the people trying to get out of the city at the same time before the next disaster struck. At the same time, I had never seen people in D.C. be so nice to each other. It was the opposite of road rage, and it was one of the most affirming things I have ever seen.

Notwithstanding the property damage and injuries, there are similar positives to come out of this experience. It was not only the sight of Muslim and Christian men interposing themselves between the demonstrators and riot police. It was not just the citizens who appeared the next morning with brooms and garbage cans to start cleaning up the debris. It was also that sense of a community – the shared approach of like-minded and responsible people pulling together to dress the city’s wounds.

The burnt out cars are being towed; the streets swept of debris. The banks and the drug stores will open again. If there were a physical manifestation of dignity, it would look a lot like this.

Tending My Own Garden in Baltimore

ChipSomodevilla/Getty Images

ChipSomodevilla/Getty Images

My wife and I live two blocks from North Avenue in Baltimore.  Our house is a short walk from the main events of last night.

The helicopters have been annoying, and they are back now, suggesting that something is going on again today. But, contrary to the way things are being portrayed on T.V., the looting and the violence have been pretty localized; contained to a few areas of the city.

On Saturday, my wife and I marched down Pennsylvania Avenue toward the Inner Harbor with well over 1,000 other citizens from the city. It was a diverse and peaceful group of people.   There were no police. There was no looting or violence.  All those people have gone home.

What you see on T.V. are the actions of a small group of agitators. Preening for the cameras, possibly hoping for a Youtube video that goes viral, these young men do not represent anyone but themselves.

Sometimes, despite the preaching and moralizing on Facebook, there is no lesson. Sometimes things are just the way they are.

Funeral Service for Louis Barnett to be Held April 21

Louis Barnett died on April 13, 2015 of a pulmonary aneurysm. My understanding is that Barnett and his wife were in the midst of a home renovation when his wife found him at the bottom of the basement stairs.

A funeral service will be held in Tuesday, April 21, 2015, at the First Baptist Church of Highland Park, 6801 Sheriff Road, Landover MD 20785. The viewing is from 9:00 am to 11:00 am, with the service to be held at 11:00 am.

Barnett’s family has asked that any flowers should be sent to J.B. Jenkins Funeral Home at 7474 Landover Road, Hyattsville, MD, 20785, Tel # 301-322-2300.

Every Prosecutor Should Experience the Humiliation and Discomfort of an Arrest

Your client is charged with Leaving After Colliding – Property Damage.  This is the technical way of saying that he is charged with “hit-and-run” or “leaving the scene of an accident” as the offense is known in other jurisdictions.

Your client is a professional with a pristine driving record. He has never been arrested before. He rear-ends another vehicle while approaching a stop light at a very low speed, causing only minor damage to his own car. Both drivers get out and an argument ensues. Your client returns home and immediately reports the collision to his insurance company, accepting full responsibility for the accident. The other driver files a police report.*

You have spent a long time cultivating your relationship with the police officer who is investigating this case.  Leaving-after-colliding is one of the few charges in which you can do this.  Normally you don’t know about the case until after your client has already been charged – at which point most officers will immediately clam up.

In this type of case, however, police notify the owner of the car that his vehicle was involved in a hit-and-run and ask him/her to come down to the district building for questioning.  If the owner is smart, he will call a lawyer.  And at this point in the investigation there is no prosecutor assigned to the case – in other words, there is no one to interpose him- or herself between you and the officer.  Moreover, with you and the officer each trying to tease out information from the other, the officer is only too willing to talk.

In this particular case, the officer promised to alert you the moment the arrest warrant is issued so that your client can turn himself in.  You need to get your client to the district building early in the morning on a day that is not normally busy. This way you can be sure he will make the cut-off time for arraignments that afternoon.  Otherwise, he might end up spending the night in custody.  If he misses the cut-off time on a Saturday, he could spend two nights in jail.

You have also talked with the prosecutor who has been assigned to this case.  He won’t dismiss the case.  But he does agree to be flexible on the turn-in arrangements. Why should your client spend an entire day in lockup when everyone knows he will come to court for the arraignment?  I will call you this afternoon, the prosecutor says, so that we can work out the details.

There is no phone call from the prosecutor.  Nor is there an alert from the police officer.  Instead, police officers arrive at your client’s home the next morning while he is still sleeping.  He is led out of his house in handcuffs, in full view of his neighbors, to where a squadron of police cars awaits him.  He is taken to the Third District where he is searched.  He spends a couple of hours lying on a cold metal bench in an unheated cell.  He is then taken to the central cellblock at 300 Indiana Avenue where he is searched again, photographed, fingerprinted and placed in another cell.

Your client is shackled to four other prisoners and loaded into a cramped van to be transported the 300 feet from the Daly building to D.C. Superior Court.  He is searched yet again – this time forced to remove his pants in an open hallway for a gloved officer to inspect his private areas.  He sits in a holding cell in the basement there for an hour or so, submitting a urine sample. He is then released to the “bullpen” where he hangs out for a couple of hours with 70 to 80 other cranky, smelly people, many of whom are there for serious offenses. Finally, your client spends the next four hours, hands and feet tightly shackled, in a crowded cell behind the courtroom waiting for his case to be called for arraignment.

I have always envied clients the experience of having gone through this process. How can you tell your clients what they should expect when you have never experienced it for yourself?  More importantly than defense lawyers doing it would be to incorporate the experience as part of training for new prosecutors.  They should know what it feels like.

Prosecutors should appreciate the economic inefficiency of it all from a societal standpoint – from the unplanned day off from work for the person who was arrested to the time of every police officer who had to supervise him over the 10 hours he was in custody – when police could have simply set a court date for him to appear voluntarily. Prosecutors should also be forced to experience the humiliation and discomfort.  Maybe then they would not be so careless, so cavalier, in performing their jobs.

*The facts of this hypothetical are fictional.

Bob Dylan at the Lyric

My wife and I have tickets to see Bob Dylan at the Lyric.

This is good news. I like Bob Dylan. And although my wife may not be terribly enthusiastic about his music, she is always happy to go out. Besides, the Lyric is just a couple of blocks from our house. We won’t need to worry about parking.

* * * * *

The (youngish) mother of a juvenile client hears me tell Wayne my investigator about the concert.  “Bob Dylan,” she says.  “Isn’t he the guy who sings the song about knowing when to hold them and knowing when to fold them”?

“No,” I say.  “That is Kenny Rogers.”

Dylan wrote so many classic songs.  It is hard for me to choose which ones to mention.  “The Times They Are A Changing. I tell her.  “All Along the WatchtowerIt’s A Hard Rain That’s Gonna FallKnocking on Heaven’s Door.”

She looks at me.  Then she breaks into the Kenny Rogers song.  Just in case Wayne and I forgot what it sounds like.

* * * * *

The Lyric is a small venue and we have good seats. Still, everything is so dimly lit that we can barely see anything.  This is an older crowd.  Don’t they know older people need more light to see?

* * * * *

I had read that Dylan views his music as very fluid.  You will be very disappointed, the article said, if you expect a song to sound like it did on one of his albums.

Sure enough, he is half way into his fourth song – only one of four songs the entire evening that I recognize – before I realize he is singing “Tangled Up in Blue.”

Heading for another joint/We always did feel the same/We just saw it from a different point of view/Tangled up in blue.

The nasal sneer is there. It is the words I can’t understand.

And he is half way into his first encore – an upbeat, jazzy version of Blowing In the Wind — before I realize that there is no way this spindly little man tottering from microphone to the keyboards and then back again could ever match the legend.

The song is as good as it has ever been.  Maybe better.  And yet the song that influenced a generation of people, a song that helped define an era, can hardly fill this little auditorium.  The world has gotten so much bigger.  There are so many other songs.

We clap and wait for another encore. The lights go up. We make our way to the exit. Thank goodness we don’t need to worry about finding our car.

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Teneyck v. U.S.: What is Significant Bodily Injury Under the Felony Assault Statute?

The D.C. Court of Appeals has issued a number of opinions over the last couple of years in which it has refined the definition of “significant bodily injury” under D.C.’s felony assault statute.

In Nero v. United States, for example, the court found that a bodily injury was significant when a bullet passed through the complainant’s bicep, causing “obvious pain and bleeding” from a wound an expert witness characterized as potentially life-threatening without treatment.  73 A.3d 153 (D.C. 2013).  Also satisfying the standard was the case in which the complainant was kicked in the head, her head hit a metal gate, and her ear “burst open,” requiring four to six stitches and leaving a scar.  In re R.S., 6 A.3d 854 (D.C. 2010).

By contrast, the Court of Appeals has held that the bodily injury was not significant when a bullet merely grazed the complainant and the complainant did not even realize at first that he had been injured and when a physician testified that, without medical attention, “probably not much would have happened.”  Nero, 73 A.3d at 159.  Likewise, the injury was also insufficient when a woman who was hit during a robbery had a swollen face and fingers and a “sore” head that was “very tender to the touch.”  Quintanilla v. United States, 62 A.3d 1261 (D.C. 2013).   Even though one of the woman’s fingers was “almost unusable for about two months” and “in a lot of pain,” the court noted that these injuries required nothing more than “everyday remedies” such as ice and aspirin.

And now there the Court Appeal’s latest opinion to address “significant bodily injury” in Reginald Teneyck v. United States, __ A.3d __ (D.C. 2015).

The complainant in Teneyck cut his hand on broken glass while scuffling with the defendant. The complainant was taken by ambulance to the hospital where a doctor tool xrays and a sonogram to locate any shards of glass in his hand.  The doctor removed one piece of glass by making an incision in the complainant’s finger.  The complainant received no sutures and was not hospitalized.  A doctor gave him pain medication which he took for a couple of days.  The complainant testified that at the time of trial, three months after the incident, he thought he might still  have a piece of glass in his finger.

Significant bodily injury, the Court of Appeals held, requires either “hospitalization or immediate medical attention” to prevent “prevent long-term physical damage and other potentially permanent injuries” or “severe pain.”  Just because medical attention is sought does not mean that medical attention was needed.   Hospitalization requires more than being admitted for outpatient care. “An injury is not ‘significant,’” the court held, “when it can be treated with first-aid remedies such as ‘ice packs, bandages, and self-administered over-the-counter medications.’”

In this case, there was no evidence that the complainant could not have safely removed the glass himself by using tweezers or another self-administered remedy.  Nor was there evidence that the injury, if left untreated, might have caused “long-term damage” or “severe pain.”

Koonce v. D.C.: Stationhouse Videos in DUI/OWI Cases Are Discoverable

And sometimes the D.C. Court of Appeals gets it just right.

For years, the Office of the Attorney General in D.C. has argued that stationhouse videos of suspects in DUI/DWI cases are not “discoverable”; that is, that they do not need to be preserved and turned over to the defense under D.C. Superior Court Rule of Criminal Procedure 16. Although D.C. trial courts have generally agreed, that was before the Court of Appeal’s recent opinion in Terrence Melvin Koonce v. District of Columbia, __ A.3d __ (D.C. 2015).

Terrence Koonce was arrested in November 2012 after he was involved in two multi-car accidents in the District. Police officers testified that he appeared to be intoxicated at the time they arrived at the scene. Koonce refused to submit to field sobriety tests and a urine sample. Officers also testified to Koonce’s behavior at the station, behavior that was captured by fixed surveillance cameras located through the police district building. A key part of Koonce’s defense was the argument that the government had failed to preserve the stationhouse videos along with a vodka bottle that had been recovered from the defendant’s car.

Although the Court of Appeals ultimately confirmed Koonce’s conviction, it held that the government’s failure to preserve and produce the requested evidence constituted a discovery violation. Specifically, it held that:

[w]ith respect to videos of DUI/OWI arrestees, …a determination of their potential as discoverable evidence is fairly straightforward. District of Columbia law creates a presumption of intoxiction if a properly informed arrestee refuses to submit to testing. The law expressly provides that evidence of a defendant’s refusal to submit samples for chemical testing may be presented to the jury. It is, therefore, to be expected that such evidence will be presented as part of the government’s case, as occurred at appellant’s trial. Moreover, it is also customary in DUI/OWI cases for the government to present the testimony of officers and other witnesses about their observations of the defendant’s appearance, speech, and actions as a basis from which to infer intoxication and impairment. Therefore, in the statutory and evidentiary context of DUI/OWI prosecutions, it takes a small, logical step to conclude that video that captures a suspect’s appearance, speech or actions soon after arrest and that records when the suspect is being informed of his rights under the statute and asked to submit to testing will be material to the defense and must be preserved for disclosure.  (Internal citations omitted.)

The court directed the government to “establish procedures and practices to preserve such evidence.” It held that now that “the government is on notice of its obligations with respect to foreseeably discoverable iterms of evidence in DUI/OWI cases that are likely to be in its possession,” the government can no longer claim “lack of willfulness” as a defense to sanctions for failure to preserve such evidence.

Solo Practitioners Don’t Have A Jackie Frankfurt

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

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 about me.

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

The Coin, Rubbed Back To Newness

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 floorboards beneath me. And then, days later, the house is quiet again.

I think of the shoebox he kept under his bed in Philadelphia:  the engraved pocket watch we gave him for his tenth birthday, the baseball cards, the plastic soldiers  — the little treasures we accumulate over a lifetime. Moving backward in time, I think of the jagged tooth pulled from his mouth and held out for us to admire. He puts it back into his mouth to wash away the blood.  Later that night, my hand moving beneath the weight of his sleeping head on the pillow, grasping in the darkness for that small piece of permanence, that tiny pearl of perfection, I know that I will find it.

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