Anyone who has ever visited the Internet is now familiar with the large number of videotapes capturing police officers running amok on hapless citizens.  A couple of weeks ago, for example, I posted a video of the Toronto woman being arrested for blowing bubbles in the general direction of the man who has now become known as the “Bubbles” cop. I have not posted some of the more graphic and disturbing videos; for example, one of a bicyclist being run down by a police cruiser or the man who is now virtually brain dead after being slammed into a concrete wall. And, of course, there is always that most famous video, the one that captured the beating of Rodney King.

While D.C. undoubtedly has its own share of overzealous law enforcement personnel whose misdeeds will eventually find their way onto the Internet, our nation’s capital also has a more unique problem. With the many monuments and other tourist destinations, there have to be more cameras out on the street per capita than in any other city. Following the 9/11 attack on the Pentagon and with all three branches of our government situated in the city, there are also a lot of security concerns.  It is therefore no surprise that innocent people toting cameras often come into conflict with overzealous law enforcement personnel.

The Washington Post reported yesterday on one case in which a Federal Protective Service officer accosted a D.C. woman for attempting to photograph the Department of Transportation headquarters.  The woman noted that she was on a public street and that a photograph of the same building was featured on the Department’s website.   When the officer told her it was illegal to photograph federal buildings, she asked him what law he was referring to.  The officer informed her that he was citing Title 18 of the U.S. Code and I guarantee he said it in that low, serious way that conveys such authority.  Although you have to give the officer credit for knowing the correct number, Title 18 is the name of the entire body of U.S. criminal law.  And there is no such law within that vast collection of offenses.

The right to take photographs in public places has always been protected by the First Amendment.  Even with enhanced security concerns following 9/11, it still is.  To their credit, a number of law enforcement agencies have recently reiterated this right. Last year, for example, the New York City police department issued a directive to all officers reminding them that photography is “rarely unlawful” and that officers have no right to demand to see photos or to delete them.  The problem, according to the Post, is that these policies don’t always filter down to the over zealous officer on the street.

In 1968, my grandmother was visiting Prague when the Soviet tanks marched in.  My grandmother watched in horror from her tour bus as Russian soldiers gunned down innocent citizens on the street.  A Russian soldier spotted her through the window with her camera at the ready.  He boarded the bus and opened my grandmother’s camera so that the film was exposed.

Clearly, we are not the Soviet Union or one of its satellite states, and it is good news that law enforcement agencies are aware of the problem and have been trying to minimize officer misconduct.  But perhaps more is needed.

I have always wondered who could possibly watch all the photographs D.C. tourists take during their stay here. One remedy I suggest is that offending officers be required to participate in a photograph-watching service offered by the city.  Tourists could bring all of their photographs to a central location at the end of their trip and have a captive audience of offending officers ooh and aah at every photograph. The service could help promote tourism in our city. Participating officers might also learn a little bit more about both the people who visit our city and the city itself. Finally, you know for sure that the families and friends of the tourists back home would be eternally grateful to us.

With thanks to both Don Ramsell and Rick Horowitz for the heads up, Cracked.Com has done a humorous but informative piece debunking popular myths perpetuated by T.V. and the movies about the U.S. criminal justice system. Below is a summary of the seven myths discussed by Cracked.com.

1. Forensic Science Is Magic

On TV, the CSI team marches onto a crime scene and, within a few moments, has found a single hair, analyzed it, and identified the killer. The same team then goes out and arrests the guy. Reality is far more complicated. DNA, fingerprint and other analysis is, at best, a very inexact science. Laboratory tests take weeks, even months, to perform. A match assumes the suspect is even in the system.

2. The Insanity Defense Lets You Get Away With Murder

The bad guy often uses the insanity defense to get away with all sorts of bad things. In reality, used according to Cracked.com in less than one percent of all legal cases and with a success rate of less than 25 percent, the insanity defense is extremely difficult to prove (and not even allowed in three states). Victory means that the defendant goes to a mental institution instead of a prison until deemed “safe to return to society,” a period of time which is often far longer than a prison term (twice as long according to one source).

3. Not Talking To Cops Equals Obstruction of Justice

The T.V. cop barges into the house and demands to know where the suspect is hiding. If you don’t cooperate, the officer tells the terrified mother or girlfriend, you’ll be charged with obstruction of justice. In reality, you have the absolute right to remain silent, to say nothing of the right to be free of illegal search and seizure. Your only risk of being charged with obstruction of justice is if you lie to the cops, destroy evidence, or otherwise take active steps to impede the investigation.

4. Undercover Cops Have To Identify Themselves If Asked

An undercover cop is meeting with the head of a major drug dealing operation when the bad guy finally gets around to asking, “You are not a cop, are you?” The officer now has no choice but to identify himself as a law enforcement official or the legal basis for the whole operation will be fatally tainted. In reality, police officers have no obligation to blow their cover.

5. Tracing a Telephone Call Takes a Long Time

“Keep him on the phone, keep him on the phone,” the supervisor tells the police officer as technicians scramble to pinpoint the bad guy’s location. Alas, the bad guy is too smart: He gets off the phone seconds before the police are able to trace the number. While this may once have been true, it no longer is thanks to what Cracked.com calls the “Enhanced 911 System” that automatically pairs an incoming call with a physical address.

6. Criminals Must Be Read Their Miranda Rights or They Will Go Free

This is one of my favorites, and also one I encounter all the time. Clients will come in grinning ear-to-ear. When I ask them about the facts of the case, they say no worries, the cop never read me my rights. In fact, the Miranda rights only pertain to statements made by a suspect while in police custody and in response to questioning. The sanction for violating this right is not to dismiss the case. It simply means that the prosecution will not be able to introduce the statement at trial.

7. Everyone Gets One Free Phone Call

The right to make one phone call after being arrested is almost as well known in American culture as the right to remain silent. In reality, however, there is no such right. Depending on the jurisdiction and the police station, the suspect may be afforded multiple opportunities to make a call.  He may also be afforded none.

Thanks again to Cracked.com for a great entry.

Although Philadelphia is famous for the corruption within its government and police force, my wife and I were still taken aback to encounter it in person upon moving to the city in 2002.  I, for example, was surprised by the pervasive cronyism and nepotism I encountered within the city’s court system, something the people there seem to take for granted.

Most court clerks, criers, and “tipstaff” owed their jobs to some type of political or familial connection, and, as with anyone with this type of connection, many did not appear to be too afraid of losing their job. One time a court clerk – somebody we not so affectionately referred to as “Fat Danny” – was caught rigging the schedules so that the list would be shorter on the days in which he worked. As it turned out, this meant that many of our clients ended up spending a week or two more in custody than they needed to. Fat Danny was not fired, as we had expected he would be. As far as I know, he is still shouting at clients and playing spider solitaire on his computer while the rest of the room waits for court dates.

Since many courts did most of their business in the morning, adjourning in the mid-afternoon, most of the court personnel had second jobs.  This often created problems for defense attorneys interested in spending a little time on cross-examination. The attorneys had to ignore the groaning and dirty looks every time they began a new line of questioning.  The judges either weren’t aware of this behavior or, eager to get to the hair appointment or golf course themselves, decided to overlook it.

Another interesting phenomenon was the jostling among private attorneys to get their cases called early each morning so that they wouldn’t be late to other listings. This was never a concern for public defenders, who would be there the whole day anyway.  But it was interesting to watch. Most judges deferred to the court crier in deciding which cases to call.  And, with some exceptions, the criers seemed to call the cases for their friends first; namely, those lawyers who were able to curry the most favor. As a result, we all knew far more about the personal lives and interests of the court personnel than we ever wanted to.

It was therefore refreshing, upon moving back to D.C. last summer, to find that the D.C. court system seems to be run far more professionally.  Judges take the bench on time, and exert far more control over the running of the list.  And, while each courtroom may have a slightly different system, there appears to be a reason for the system.  Some judges call the trial schedule first and then the status list.  Some judges move sequentially through the list.  Others take a first-in, first-out approach for lawyers appearing before the court.  However it is done, the system appears to be both transparent and fair.  And the predictability certainly makes things easier for the attorneys.

Even after spending a year in the nation’s capital, my 15-year-old son continues to list the many reasons Philadelphia is so much better than D.C., and it occurs to me that he may not have considered this particular advantage to D.C. This may finally be the factor that tips the balance in favor of D.C.  Or not. But it sure makes his father’s job more pleasant.

The arraignment is usually the first court appearance for a criminal defendant in Washington, D.C. and, as such, tends to cause particular anxiety for clients. Do I need a lawyer at the arraignment? What do I say? Should I plead guilty or not guilty?

Although the court itself will assure that you don’t do anything to compromise your position or your rights, you will need a lawyer to represent you at the arraignment. In most cases, defendants who are not able to afford a lawyer will have already been assigned a court-appointed lawyer. If you are not eligible for a court-appointed lawyer and you show up without legal representation, the court will allow a “duty attorney” to stand in for you at the arraignment but will then schedule another hearing for “ascertainment of counsel” (that is, another listing for you to return with legal counsel).

As for what you will need to say at the arraignment, the quick answer is that, other than your name, you don’t need to say anything at all. You just need to stand there while your lawyer does all the talking. And there really isn’t that much to say.

Your lawyer will plead “not guilty” on your behalf. He or she will waive a formal reading of the complaint and assert your constitutional rights, including the right to a speedy trial. The court will also consider the conditions of release pending trial. If, for example, you have already been released on your own personal recognizance, with reporting and other minor requirements, it is extremely likely that the judge will continue these conditions.

In most cases, the court will schedule a status hearing for your next court date, normally 6 to 10 weeks out. This will give your lawyer some time to contact the prosecutor about possible non-trial dispositions.

Your lawyer should also find out which prosecutor has been assigned to your case and receive the police report and other preliminary pieces of “discovery” from the prosecutor (that is, evidence, reports, and other forms of requested and prescribed information that is material to your case). Your lawyer will normally make a more formal request for discovery shortly after the arraignment. Depending on the nature of the case, your lawyer may also file any number of pre-trial motions (for example, a motion to suppress evidence based on a violation of your constitutional rights).

As for the question on pleading guilty or not guilty, in most cases the court will only allow you to plead “not guilty.” Your lawyer has not seen the police report yet and in most cases has not conducted an investigation of his or her own. The arraignment is not the proper place to enter a guilty plea.

The final question I often hear is whether a defendant can save some money by waiting until after the arraignment to hire a lawyer.  While you do have a constitutional right to represent yourself in a criminal proceeding, the court will make it virtually impossible for you proceed without legal counsel at the arraignment. Moreover, since representation at the arraignment is included in the flat fee charged by most criminal defense lawyers, you might as well have the lawyer who will handle the later stages of the prosecution represent you during this initial step as well.

The final step is for the court clerk to issue you a subpoena for your next court date and to warn you of the consequences of a failure to appear.

As laid out above, the arraignment sounds pretty complicated. In truth, the whole process – from the calling out of your name until you find yourself heading for the door – will usually be concluded within a period of minutes.

Yesterday’s testimony of D.C. Superior Court Magistrate Judge Janet Albert as a witness in a criminal case against her former girlfriend raises challenges for everyone involved.  A number of D.C. judges, including Lynn Leibovitz, refused to hear the case.  And it will be left to court-appointed defense attorney Dorsey Jones Jr. to cross-examine the judge on a difficult and emotional case either today or tomorrow.

Defendant Taylar Nuevelle; Photo by Sarah Voisin/The Washington Post

This is after Jones’ motion seeking a recusal of all D.C. Superior Court judges from hearing the case was denied.  Said Jones, as quoted in The Blog of the Legal Times: “Even though the judge may not have a close relationship with every D.C. Superior Court judge, there remains an appearance problem for any D.C. Superior judge to preside over this case.  Any current D.C. Superior Court judge may feel empathy toward [Albert] and it may unknowingly sway their judgment in making judicial rulings in this case.”

Defendant Taylar Nuevelle is on trial for burglary, unlawful entry, and stalking after the judge found her former companion in the attic above the judge’s bedroom with some food and an ice bucket serving as a toilet.  According to the Washington Post, the two women dated for a year or so after meeting at a church retreat in 2007.  When the judge tried to end the relationship in the summer of 2008, Nuevelle began a pattern of behavior, including stalking and attempted suicide, that culminated in her arrest.

Whatever challenges D.C. court personnel face in putting on the criminal case, the situation is undoubtedly most unfortunate for the judge.  In addition to the personal details about her life that have come out as a result of the case, Nuevelle has written a letter to Chief Judge of the D.C. Superior Court Lee F. Satterfield alleging that Judge Albert used her influence as a judge to remove a child from home – without the mother’s consent or a court order – to live with the two women for almost six weeks.  These allegations are now under review by a committee of D.C. Superior Court judges.  The Judge is also the defendant in a civil suit filed by Nuevelle seeking return of property.

In “Reconfiguring Terms,” legal blogger Gideon complains about the widespread use of  the phrase “legal technicality” to explain why a particular criminal case was dismissed.  Writes Gideon:  “It really grinds my gears when I hear lay people . . . use the term technicality to describe a violation of some Constitutional right.”

Gideon is absolutely right.  People often do use the term, and, in so doing, they usually utter the term in a disbelieving, exasperated tone.  As in:  “Can you believe the guy got off on some legal technicality?”  As in:  “But for the legal technicality, the guy would be in jail where he belongs.”

So what does it mean to get off on a legal technicality?  In most cases it means that the judge has dismissed the case because of some violation of the defendant’s constitutional rights.  Maybe the police made a warrantless search.  Maybe they interrogated a suspect without reading the suspect his rights.

If so, the dismissal of the charges should be grounds for celebration, not exasperation or consternation.   We should be celebrating the fact our Constitution is alive and well, that we have the means to hold our law enforcement personnel accountable, and that we have the judges with the courage and integrity to enforce the Constitution.

Gideon suggests we try to replace the phrase “legal technicality” with a phrase that more accurately describes the true reason the case was dismissed.   For example, it would not be that the charges were thrown out because of a legal technicality but that the case was dismissed because of police misconduct.  Or prosecutorial dishonesty.  Or fabrication of evidence.

Adds Jeff Gamso of Gamso –For the Defense:  “The Constitution is not a technicality.”  He too is absolutely right.  A legal technicality is a piece of fine-print hidden away in some obscure legal document or statute, not the broad legal protections contained in the Fourth, Fifth, and Sixth Amendments.

In a blog entry entitled “Victims Speaking Out,” D.A. Confidential describes the cathartic effect allocutions can have for the victims of a crime.  “Allocution” refers to the dialogue between a judge and a defendant prior to sentencing.  Allocution allows the defendant to ask for mercy, explain his or her conduct, apologize for the crime, or say anything else to the judge to get the judge to go easy on him.

While I will defer to the Texas prosecutor who writes D.A. Confidential on the beneficial effect of allocutions on victims, I believe that allocutions are very cathartic for a defendant who has been convicted of a crime.  For months and months, or for however long the process has taken, the defendant has been required to let his attorney do all the talking.  Now, finally, it is the defendant’s turn to speak directly to the judge.

The same is true for public apologies.  Sometimes all the victim wants is for the defendant to say he or she is sorry.  I had a great case a year or so ago that was right out of a Disney movie. The complaining witness — an 85-year-old woman — had hired my client to wash her car. At some point, my client went into the woman’s house to use the bathroom. And at some point the woman discovered that there was cash missing from the front table of her house.

I spoke with the client before trial to discuss trial strategy. He said there was no way he was going to make the old woman testify. He wanted to plead guilty but only if he could be given the opportunity to apologize to her for betraying her trust.

The DA was surprised by this unusual condition but readily agreed. The woman was brought up to the bar of the court at the time of the guilty plea, and my client apologized.

The woman looked at him.  “Young man,” she said, though my client was well into his fifties.  “You were forgiven at the very moment you took that money.  And, incidentally, you did a very good job washing my car.”  The entire gallery erupted in applause — something I had never seen before and probably never will again.

The client was so excited he could hardly contain himself when he came into my office.  “We’ve got this case beat,” he told me.  Why is that?  “Simple,” he said.  “The police never read me my rights.”

The "Christmas Day Bomber"; Photo by Mike Rimmer via Associated Press

The Miranda rights are deeply ingrained in our society and culture.  The U.S. Supreme Court briefly considered abolishing the rights as an anachronism in 2000 but ultimately decided that the rights were too deeply imbedded in the national consciousness.  After all, everyone knows these rights under the Fifth Amendment and can recite them from memory:  “You have the right to remain silent.  Everything you say can and will be used against you . . .”

In fact, so many Canadians watch American T.V. and movies that Canadian citizens will often assert the Fifth Amendment right to remain silent.  This is to the surprise of Canadian courts considering that there is no Fifth Amendment in that country.

People may know about the Miranda rights and the 5^th Amendment but, like my client above, they frequently misunderstand the impact of the failure by police to read these rights.  In fact, Miranda only applies to cases in which the defendant is both in police custody (not free to leave) and being interrogated (asked specific questions about criminal activity).  This means that if the police stop a person on the street and ask about criminal activity and the person blurts out that the drugs are not his, the person’s statement will probably be admissible at trial.

Moreover, the remedy for a violation of the Miranda rights is not to dismiss the case.  It is to preclude the prosecution from introducing the un-Mirandized statements against the defendant at trial.

Reading of the Miranda rights became an issue most recently in the questioning of the Christmas Day bomber, Umar Farouk Addulmuttalab, at the Detroit airport.  FBI agents who questioned the suspect in his hospital room initially decided to forego reading the suspect his rights, presumably under a public safety exception to the Miranda requirement, and the suspect talked freely, incriminating himself with his statements.

The interrogation was halted so that the suspect could receive medical treatment. At this point, the FBI brought in a “clean team” of investigators to take over the interrogation.  This time they read him his rights.  And this time, having heard those rights, the suspect elected to remain silent.

The FBI approach in this case reflected tactics used in police departments throughout the United States.  First, you get the suspect to admit everything.  If you succeed, you then read the suspect his rights and repeat the interrogation. Many suspects, having already let the cat out of the bag and not being aware of the legal admissibility of the first statement, will go ahead and make the same concessions after having been Mirandized.

I repeat once again:  Never, ever say anything to the police about the facts of the case or anything even remotely associated with the case.  If in doubt, just remain silent.  But not before you assert your right to a lawyer.  You do this immediately.

It is a sad but well-known fact among criminal defense lawyers in many jurisdictions that if you insist on a jury trial and lose, you will get a stiffer penalty than if you lose the same case in front of a judge.  That’s right:  Same facts.  Same verdict.  Different sentence.

This is a variation of the so-called “trial tax,” which refers to the process by which a defendant is penalized for fighting a case at trial instead of pleading guilty.  However objectionable the idea of a trial tax may be, penalizing a defendant for exercising his/her constitutional right to a jury trial on a serious criminal offense should evoke even stronger indignation.

Yes, jury trials are more time-consuming and expensive for the government than bench trials.  (A bench trial is one in which the judge both presides over the trial and makes the ultimate determination on guilt.)  They take longer.  They involve more people.  In fact, a jury demand by every eligible defendant in a large city with a congested court calendar could completely overwhelm the system.  As a result, these systems are predicated on the assumption that some defendants will agree to litigate their case in front of a judge instead of a jury.  There has to be some incentive for them to make this decision.

Thus, say supporters of the system, it all depends on how you look at it.  You are not being PENALIZED for demanding a jury trial.  Instead, you are being REWARDED for agreeing to a bench trial.

Is this true?

It is easier for me to understand this reasoning with respect to the so-called “trial tax.”  After all, if you relieve the government of the need to call in witnesses, reduce demands on the overburdened court system, ease the government’s concern that you may walk away scot-free, and, most importantly, accept responsibility for the actions that led to the court case, it is easier to believe that you are getting something in return.  You might get probation, for example, instead of jail time.

I have more trouble accepting this fiction when it comes to the “jury trial tax.”  The key difference is that there has been no acceptance of responsibility.  You have the exact same facts, the same or similar presentation of evidence, and the same guilty verdict.  The only difference is the sentence.  How can you possibly argue that a longer sentence is not in retaliation for the defendant’s insistence on wasting the court’s time with a jury trial?

Courtroom surprises make for great drama on T.V. and in the movies.  The defense lawyer produces a new piece of evidence or the witness makes a startling admission on the witness stand.  The case is broken, and justice prevails.

Courtroom surprises in real-life are very rare.  The entire system is in fact geared toward eliminating such surprises.  The whole point of the rules of “discovery” – that is, the court-monitored process by which each side provides the other with particular type of information relating to the litigation prior to trial – is to assure that each side will NOT be surprised by anything that happens at trial.

In civil litigation, mutual discovery obligations are fulfilled through interrogatories (written questions submitted before trial), depositions (sworn testimony conducted before trial), requests for admission, and requests for production.

The rules are a little bit different for criminal trials.  Specifically, recognizing the due process rights of a person at risk of losing his/her liberty, the rules favor the defense.

According to the Brady doctrine, which arose out of the Supreme Court case of Brady v. Maryland, the prosecution has a duty to disclose to the defendant prior to trial all information and evidence that is favorable to the defendant’s case.  A failure to fulfill this duty can result in mistrial or a dismissal of the charges.  Alternatively, the court may preclude the prosecution from using at trial any such information or evidence that has not been turned over.  In egregious cases, the offender lawyer can be subjected to disciplinary proceedings.

The rules governing pretrial discovery in D.C. Superior Court largely mirror the federal rules.  The government is required to turn over:  (1) any statements by the defendant within the control of the government, (2) a copy of the defendant’s criminal record, (3) any documents or tangible objects which are either material to the case or which the government plans to use at trial, (4) any reports of examinations and tests, and (5) any written summaries of testimony by experts the government plans to call to the stand at trial.  The defense can also petition the court for additional discovery depending on the circumstances.

A defendant requesting discovery under the third, fourth and fifth categories described above can be required to provide reciprocal discovery with respect to those three categories.

There is a “continuing duty” to disclose any additional previously requested evidence or material that may come to light after initial discovery requirements are satisfied.  There is NO duty to disclose internal reports, opinions, observations, legal theories, or other forms of attorney work product.