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.

I was in contact this morning with a former colleague at the Philadelphia public defender’s office who eventually plans to go into private practice herself and who tells me she has always been impressed by my willingness to take the plunge. But, she told me, she has no clue about how you go about bringing in new clients. Below is the perspective of someone who has been doing this for less than a year.  My approach is still a work in progress. I am always open to suggestions.

I should first note that I don’t do any paid advertising.  I am not opposed to it.  I know that sometimes you need to spend money to make money and all of that.  It’s just that I have tried it, it hasn’t worked for me, and I eventually decided it wasn’t worth the investment.

Last winter, for example, I spent $100 or so on an advertisement in the Washington City Paper that appeared for three months both on-line and in the hardcopy version available on the newsstands.  The ad generated a single phone call from a jurisdiction in which I am not licensed to practice.  I also spent $147 a month for three months to appear as one of three lawyers at the top of the Avvo DWI/DUI page for Washington, D.C.  That investment generated zero calls.

That said, the best way to develop a steady stream of clients, as everyone knows, is to develop a solid referral base.  I checked on the criminal defense lawyers I respected in Philadelphia and found that not a single one of them seemed to do any type of advertising at all.  They don’t need to.  Referrals generate more clients than they can handle.

Most clients with enough money to hire lawyer will either already have a lawyer or will at least know a lawyer who can make the referral. Referrals also tend to be good clients. Because you have already been endorsed (pre-approved) by someone they know and trust, they are favorably disposed towards you even before they have met you. They are serious, and there seems to be very little of the tire-kicking that some lawyers complain about. In fact, some of my best clients have come in by this route, bringing with them some very interesting cases.  Thank you to the lawyers who have made these referrals. I have also gotten one client through the Legal Referral Service of Bar Association and have recently signed up a similar referral service run by the Virginia State Bar.  We’ll see.

While I hope to eventually base my practice entirely on referrals, I am still relatively new to the D.C. criminal defense arena.  Still working to develop my reputation and referral network after only nine months of solo practice here in D.C., I am not there yet.  As a result, I continue to rely on this combined website/blog to bring in new clients.

I know there are many criminal defense lawyers who scoff at this way of bringing in business.  All I can say is that it works for me. I don’t tend to get complicated or serious cases. It’s hard to believe, for example, that a person charged with a very serious crime would hire a lawyer off the Internet.  But the misdemeanor DWI/DUI, assault, and theft cases I have secured this way have gotten me into court. They also pay the bills. And I have liked all the clients I have gotten this way.  Once we start working together on a case, it is irrelevant where the client came from.

(I should note that I have not spent a single cent on any of the private legal referral services or firms promising, in exchange for a hefty fee, to improve your website’s Google ranking.  While there may be some lawyers who swear by these services, I don’t see the value.)

Finally, I am still waiting to get onto the panel of lawyers in D.C. approved to take court-appointed cases.  I missed the deadline for applying for this panel by just a couple of months upon relocating back to D.C. last year, and I am told that the panel will not be reopening until next fall or winter.  The D.C. court system pays court-appointed lawyers very well, and there are many lawyers in D.C. who do nothing but court-appointed work.

While I hope to eventually get on the panel as a way to get more experience and to even out my flow of income, I will continue to emphasize the retained work.  The pay is better, and clients seem to prefer services they have paid for.  Such clients also tend to cooperate more with you in preparing their defense.

A boss once told me that the reward for good work is more work.  We’ll see if I can be that lucky.

Courtesy of Jeff Adachi and the San Francisco Public Defender’s Office, here is a public service video entitled “Innocent Until Proven Guilty.”

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.

A couple of days ago, I posted a YouTube of a Toronto police officer arresting a demonstrator for blowing bubbles in his general direction.  “If a bubble touches me,” the officer warns the demonstrator, “you are going to be arrested for assault.”

The video has apparently received a lot of attention on the Internet, and the officer has since been identified as Adam Josephs, an officer who supposedly referred to the Toronto public as “human garbage” on his Facebook page.  Here, courtesy of the Law Is Cool blog, is a little spoof on Josephs’ exchange with the demonstrator.

There has been some debate over the last couple of months in the blogosphere about the extent to which a criminal defense lawyer does and should fret over losses.

Ideally, you would assess how well you did at trial at the bar of the court right after final arguments and you would stick to that assessment no matter how the verdict came back. As it is, speaking for myself anyway, the verdict tends to contaminate that assessment. No matter how you feel prior to hearing the verdict, you still feel ten-feet-tall after an acquittal, with every decision you made now confirmed as the right one. And you still can’t help feeling like a miserable lawyer after a guilty verdict, with the need to second-guess every tactical decision.

Clearly, every case is different and every lawyer is different. At the same time, to the extent that self-reflection leads to a trial lawyer’s personal growth, I can’t help thinking that a certain degree of navel-gazing should be forgiven. After all, a person unafraid of self-examination is a person unafraid of what he or she may find.

I was therefore interested to come across the perspective of a prosecutor on trial losses, in this case from my favorite prosecutor DA Confidential. A reader asked Mr. Confidential to what extent, after losing a trial, he engaged in “any sort of retrospective look at things to see what went wrong.”

Yes, Mr. Confidential responded, there is always some “what-iffing” after a lost trial. At the same time, the prosecutor has already conducted a thorough analysis of the case prior to trial, looking closely at plea bargaining issues and running certain issues by his supervisors. As a result, “there’s not much point in revisiting [these issues] after a loss.” Trials are always unpredictable. The prosecutor is usually too busy to engage in too many post-mortems. Finally, the gap between the respective expectations of the prosecution and defendant on a potential plea bargain is sometimes just too large. Trial becomes necessary when there is no overlap in the relative expectations of the two sides.

While it is difficult to say to what degree Mr. Confidential’s approach reflects the views of most prosecutors (he certainly strikes me as one of the more enlightened prosecutors and, in that event, may not be typical), any major differences between a prosecutor and a defense attorneys in dealing with a trial loss can certainly be attributed, at least in part, to the different objective each has in going into trial.

For the prosecutor, the ultimate objective in taking a case to trial is supposed to be justice. If the person is convicted after a fair trial, that is justice. If a person is acquitted after a fair trial, that too is justice. In this sense, assuming the system has worked, the overall objective is completely intertwined with the result.

The defense has a much more narrow objective going into trial; namely, to serve the interests of the client. This leads almost inevitably to a much more results-based calculus. The client may feel relieved that you did everything you possibly could on his behalf. But brilliance and hard work count for nothing when you lose: The client is still convicted. He may be going to jail. It is therefore no wonder that this emphasis on results creeps into the defense attorney’s assessment of his own performance.

Although the violation of probation hearing for Lindsay Lohan was over a week ago, I just came across the YouTube video. Lohan’s surrender date is July 20. Thanks to Claxton Legal for the link.

People charged with soliciting a prostitute in D.C. could be eligible to participate in a “diversion” (i.e., non-trial) program called the “John Diversion Program.” A person who decides to take advantage of this program pays a $300 fee and attends a one-day course on health and other risks associated with prostitution. In exchange for successful completion of these requirements, the government will drop the charges.

A person charged with solicitation of a prostitute should find out at his first court appearance whether or not he is eligible to participate in the program. (While the government does not specifically spell out the criteria for eligibility, it is generally available to first-time offenders.) Whether or not to participate in the diversion program is a decision the person will need to make in consultation with his lawyer. It will depend on the specific facts of the case.

A person who decides to participate in the program is directed to the Misdemeanor Unit Room 1305-B of the U.S. Attorney’s Office at 555 4th Street on any Tuesday or Thursday between the hours of 9:00 am and 12:00 pm. Bringing a check for $300 made out to Angels and Associates, Inc., the person can sign up for the one-day course, which is usually offered once-a-month on a Saturday. Clients who have taken the course have told me that they were pleasantly surprised at how interesting the course was.

If the person brings a certificate of completion to the next court date, the government will dismiss the charges. At this point, the person may want to consider filing a motion to have his arrest record “sealed.”

According to Section 22-2701.1 of the D.C. Crimes Code, “solicit for prostitution” means to invite, entice, offer, persuade, or agree to engage in prostitution or address for the purpose of inviting, enticing, offering, persuading, or agreeing to engage in prostitution.” The penalty for prostitution is a fine of $500 and/or not more than 90 days imprisonment for the first offense; a fine of $750 and/or up to 135 days imprisonment for a second offense; and a fine of $1000 and/or not more than 180 days for a third and each subsequent offense. The court may “suspend” the sentence (that is, order probation in lieu of incarceration) for a conviction of prostitution. It may also order the person to stay away from the area in which the offense occurred, submit to medical and mental health treatment or fulfill any other conditions the court may impose.

With thanks to Jonathan Turley of the Res Ipsa Loquitur Blog, here is a video of a Toronto woman apparently being arrested for assaulting a police officer with bubbles. If this had happened in Philadelphia (at least under the old regime), the woman would also have been charged with disorderly conduct, failure to disperse, and breaching the peace.

According to the Washington Post, a 19-year-old man wearing a Metro bus driver’s uniform walked into the Bladensburg bus garage, got into a bus, and drove away. But instead of making off with the bus, the man drove the correct B2 route, picking up passengers along the way. It wasn’t until he crashed the bus four miles into the route and fled that anyone was alerted to the fact that he may not have been legitimate.

The man, who told investigators he was simply fascinated with buses, has been charged with unauthorized use of a vehicle and fleeing the scene of an accident.

There are four elements to the criminal offense of unauthorized use of a motor vehicle in D.C.  The government must first prove that the person took, used, or operated the vehicle.  Second, the government must demonstrate that the taking/use was for the person’s own profit, use, or purpose.  Third, the taking/use needs to be without the owner’s consent.  Finally, the government must prove that the person knew that he or she was acting without the owner’s consent.  The person does not need to actually steal or intend to steal the vehicle.

Motor vehicle is defined as any automobile, self-propelled mobile home, motorcycle, truck, truck trailor, or bus.  Unauthorized use of a motor vehicle is a felony offense punishable by a maximum fine of $1,000 and up to five years of imprisonment.