Donald E. Gates. Photo: Wade Payne/Washington Post

Donald E. Gates served 28 years in prison for a crime he did not commit.  In 1981, Gates was convicted of raping and murdering a Georgetown University student, whose body was found in Rock Creek park with five bullet wounds to her head.  The key piece of evidence against Gates – providing what the prosecutor described as both the “link” to and “corroboration” of all the rest of the evidence – was a hair found on the victim’s body that, according to an FBI analyst, matched a hair taken from Gates.  Gates was not released until last December when DNA tests finally disproved this evidence.

The Washington Post ran a story this weekend about Gates’ release in which it emphasized the prosecutor’s reaction.  In fact, the Post devotes the first six paragraphs of the story to J. Brooks Harrington, the former Assistant U.S. Attorney for the District of Columbia, who handled the case for the United States.

We find out in the first paragraph about Harrington receiving the type of news that “no prosecutor wants to hear.”  Two paragraphs later, we learn that Harrington is unable to express “how sick” this made him feel.  We find out in the next paragraph that other prosecutors are concerned that this type of thing will happen to them.   Harrington attempts some self-justification in the fifth paragraph:  “You do your best with the evidence you have.  I was just flatly wrong about it.  I did my best, and it wasn’t good enough.”  Finally, we learn in the sixth paragraph that Harrington is  “emotion fractured” and that he keeps a photograph of Gates in a frame over his desk.

It is not until the seventh paragraph – barely still on the first page — that we finally hear something from Gates.  Even then, it is in connection with the prosecutor.  “I forgive you,” Gates wrote Harrington after he was released.  “I forgave you a long time ago.  Now I consider you my friend.”

And it is not until the eighteenth paragraph of the Post story that we finally learn why Gates was falsely convicted.  It turns out that the FBI analyst who reviewed the hair sample had fabricated his testimony against Gates at trial.  And apparently this same analyst had committed similar fabrications in cases across the country. Even then, the Post hastens to bring us back to Harrington, because of course we are all viewing this from his perspective.  Harrington had no way of knowing about this, the Post assures us. “None of us knew the hair examiner was dishonest,” Harrington says.

So where is the true story in this case? Is it that Harrington feels really, really bad?  Or is it that we find out once again that misconduct on the part of law enforcement personnel has resulted in an innocent person spending years behind bars – in this case, 28 years – for a crime he or she did not commit?

For me, the true story arising out of the FBI analyst’s malfeasance in this case – the story that the Post seems to have missed – is that we need to overhaul the way our legal system currently approaches forensic science.  This was the conclusion the National Academy of Sciences reached — in its typically understated way — in its report, entitled “Strengthening Forensic Science in the United States: A Path Forward,” that came out in February 2009.” Click here for a full copy of the report. Click here for access to an ABA article on the report.

Two of the report’s most controversial recommendations merit mention here because, if adopted, they could go a long way toward preventing the type of injustice that befell Donald Gates from re-occurring.  The first recommendation is establish a National Institute of Forensic Sciences (NIFS), a federal entity to be created by Congress, to set national standards for forensic science professionals and laboratories.  As microbiologist Eric Lander pointed out in 1989, current forensic science is virtually unregulated.  As a result, there are now more stringent requirements for diagnosing strep throat than for performing the types of tests that could put a man onto death row.

The second recommendation would be to further the independence of forensic science laboratories by removing them from the “administrative control” of law enforcement.  As one expert has noted, “the police agency controls the formal and informal system of rewards and sanctions for the laboratory examiners.  Many of these laboratories make their services available only to law enforcement agencies.  All of these factors raise a legitimate issue regarding the objectivity of laboratory personnel.”

The expert who made this statement was named Joseph Peterson.  He made the statement in 1983.  At that point, Donald E. Gates had only been in jail for two years.

D.C. Police Chief Cathy Lanier

D.C. criminal defense lawyers have long challenged the accuracy of the breath test machine used in the District, the Intoxilyzer 5000EN, to measure blood alcohol concentrations of drivers suspected of driving while intoxicated (DWI).   Even when properly calibrated, the equipment relied on a number of questionable assumptions with respect to breath alcohol as a surrogate measure for blood alcohol concentrations.  And it turns out we were at least partially correct.

As I reported earlier, criminal defense lawyers handling DWI cases in D.C. Superior Court noticed toward the middle of last month that the Office of the Attorney General (OAG) was dismissing DWI charges in many cases involving the Metropolitan Police Department, while still proceeding with the related charges of driving under the influence (DUI) and operating while impaired (OWI).  DWI is a per se offense; that is, in order to make out the charge, the prosecution need only prove that the suspect was operating or in physical control of a motor vehicle at the time his or her blood alcohol concentration was 0.08 or higher.  In order to meet its burden with respect to DUI or OWI, the prosecution must prove that the driver’s operation was impaired by intoxication.

On February 26, D.C. Police Chief Cathy Lanier announced that the police department had discovered problems with the administration of the breath test.  The Washington Post reported today that District officials have now begun a review of all DWI charges brought between October 2008 and February 2010 to look for questionable results.  Writes the Post:  “It is not known how many cases will be affected or how officials will resolve those that have already been adjudicated.”

People with either a pending case or a case that was adjudicated during this time should contact their lawyer to find out how their cases could be affected by this situation.

Back before I went to law school, back before I was a trial lawyer who would die to serve on a jury in a criminal case so that I could experience first-hand the internal deliberations of a jury, I used to dread receiving a jury summons in the mail.  And I sometimes wondered what would happen if I just failed to show up.  Would they send a police officer out to arrest me and put me in jail?  Not very civic minded I know, but nevertheless.  That’s the way I felt.

The answer, in D.C. anyway, is that I would have run the risk of being held in contempt of court.  The Washington Post, for example, reports that 100 bench warrants were issued in 2008 for District residents who failed to show up for jury service after receiving a summons.

The most egregious case involved a situation in which a guy, Louis Alexander, responded to the summons in January  and was chosen for a jury but then cut out after the first day of a murder trial.  On the second day he was supposed to report, Alexander apparently called the judge’s chambers to inform the court that he had an emergency meeting at the hotel he manages.  Court personnel were unable to reach him on a cell phone number he had left, and the judge issued a bench warrant for his arrest charging him with contempt of court. Contempt of court carries a maximum sentence of up to 6 months in jail.

Yesterday Alexander appeared before the judge, D.C. Superior Court Judge Herbert B. Dixon, Jr., to answer for the contempt charges. Under questioning from his lawyer, Brandi Hardin, Alexander explained that his absence was due to an emotional breakdown.  His father, now ill, had been a D.C. Superior Court judge.  Being back in court evoked too many memories of accompanying his father to court when his father was young and healthy.  Judge Dixon suggested that, while this explanation seemed a tad too convenient , he would accept it, and dropped the charges.

Unlike many of my colleagues in the criminal defense bar, I would have no moral qualms about working for the prosecution. In fact, during the summer after my first year at law school, I interned at the U.S. Attorney’s Office for the Eastern District of Pennsylvania.  I also interviewed with the county prosecutor’s office for an internship the following summer.

It’s the interview with the county prosecutor’s office that I want to talk about it today.  Because I think it went very well.

I came to class one Friday to find some of my fellow students in formal interview clothes.  “Why the fancy clothes,” I asked.

“The prosecutor’s office is interviewing today,” they replied.

That’s funny, I thought as I stood there in my sweatshirt and jeans.  I have an interview with the prosecutor’s office myself.  I thought it was next Friday.  I checked my schedule and, sure enough, my interview was scheduled for that day.

Now I was faced with a dilemma.  The interview was at least three or four hours later.  I still had plenty of time to run back home to change into a suit and tie.  For whatever reason, I decided not to do this.  I was sure that my interviewer would understand how a busy, promising law student such as myself could forget such an important appointment.  It would certainly set me apart from the other applicants.

No.  My real dilemma was whether or not to do the interview at all.  Ultimately I decided I would.  Because I so wanted to be a county prosecutor.

So, a couple of hours later, I went over for the interview.  The other people sitting there in the reception area, all dressed up in their nice business suits waiting to be called, looked surprised to see me.  Maybe even a little bit concerned.  I thought I might have nicked myself shaving that morning. Or maybe I was just having a really bad hair day.

My interviewer also seemed surprised to see me.  I’m sure she saw the humor in the situation. But she was also professional.  She couldn’t let on.  I did notice that she seemed a little bit uptight.

We took our seats, and she explained to me the rotations interns went through over the summer and then turned the interview over to me.  Why did I want to be a prosecutor?

I think I gave her a very good answer.  While I can’t remember the specifics, I know it had something to do with developing trial skills.  And so on.  When I ran out of things to say, and she looked at me expectantly, I went back and covered some of the same stuff.  For emphasis.  Just in case she missed any of it the first go round.

Again, my interviewer was very adept at hiding her admiration.  Yes, she said finally, just as I was about to cycle back for a third time.  That’s fine and good and all, but you could get the same trial experience as a public defender.  Why specifically do you want to be a prosecutor?

I thought about this a moment.  And frankly, I couldn’t come up with a response.  I had already exhausted every possible reason for working as a prosecutor.  I had already mentioned, for example, my interest in developing trial skills.

I thought about saying something about justice, about protecting innocent people from crime on the streets. I thought about the theories of incarceration we had discussed in criminal law class:  retribution, deterrence, rehabilitation, and so on. I thought about how I didn’t agree with my criminal law professor when he said that deterrence never worked.  I know deterrence works.  The only reason I don’t speed is because I am afraid of getting a ticket.

Finally, I decided on something more simple:  “If you mean, do I want to put people behind bars,” I said. “I guess that’s not really what motivates me.”

I thought she might appreciate my candor.

We looked at each other for a moment across the table. Actually, it may have been longer than a moment because I had time to notice that she was wearing pearl earrings.  There was also a little speck of mascara that had fallen onto her cheek.  I was just beginning to wonder what city skyline was depicted in the framed photograph over her shoulder when she decided to break the silence.

“I see,” she said.  She thought about this for a moment longer.  Then:  “I see.”

Something must have occurred to her – perhaps she was running behind on her schedule – because at this point I had the sense she wanted to end the interview as quickly as possible.

“Well,” she said.  “Thank you.  Thank you very much for coming in.”

Again, I think the interview went very well.  I am still waiting for the call-back.

I used to hire a particular expert witness in Philadelphia on drug distribution cases, a guy named David Leff.  Leff was so good — that is, he had so much credibility with judges — that I rarely had to call him to the stand.   Sometimes all he needed to do was walk into the room and take a seat in the gallery.  The prosecution would then withdraw the felony charges and proceed on simple possession.

There is no need for an expert witness in a misdemeanor drug case.  Your client either possessed the drugs or he didn’t. Where an expert witness comes in handy is when your client is carrying a large amount of drugs on his person and the prosecution wants to convict him of felony drug distribution even though your client was never seen engaging in any type of drug transaction. Since the police can’t claim to have actually seen him deliver any drugs, the prosecution wants the judge or jury to infer that, given the large amount of contraband on your client’s person, your client must have possessed the drugs with intent to distribute them.  NOBODY could possibly have intended to use that large an amount of drugs personally.

Because, the reasoning goes, addicts use drugs as soon as they buy them. They don’t buy for friends. They don’t buy in bulk, despite the discounts they could get by doing so.  No, they are thinking day-to-day, not planning for tomorrow. Users don’t try to minimize the number of trips they make to the drug corner even though they subject themselves to the risk of arrest each time they go.

These are the government’s arguments anyway.  And that’s why you need an expert like David Leff. An expert can debunk some of these myths.

It doesn’t help your case if the client had a large amount of money on his person without a credible explanation as to how he or she came into possession of it.  After all, as the government’s witness will testify, addicts go through every penny that they have.  And you can forget about using an expert if your client was found in possession of “unused packets,” cutting agents, razor blades, or any other paraphernalia associated with the packaging and sale of drugs.  After all, the expert has a reputation to maintain. (I would speak of “user” paraphernalia  — a crack pipe or bong, for example — but, for some reason, in cases involving a large amount of drugs, those items don’t always make their way onto police paperwork.)

You can sometimes have some fun with the government’s “expert” witness. I put the term in quotation marks because, at least in Philadelphia, the government’s “expert” is often anointed on the spot when the real expert doesn’t show. The officers so anointed are usually experienced narcotics officers, so yes, they do know a thing or two about drugs. But their perspective is derived largely from their experience in arresting people and charging them with drug distribution no matter what the suspect’s actual intentions are.

“No, Your Honor,” the expert will say, lowering his voice for authority.  “I have NEVER known a drug user to possess 15 packets of crack cocaine.”  No?  But, of course, you don’t know my client.  You don’t know his drug habits.  And you would agree with me that a heavy user of crack cocaine could go through X number of packets in a day, right?

This last question puts you in a no-lose situation. If the witness agrees with you, he or she has just thrown the entire premise of the government’s case into doubt. If he doesn’t agree with you, you can impeach the witness with your expert. Maybe the government’s witness doesn’t know so much about the drug habits of addicts after all.

Making the case that your client is an addict, not a drug dealer, can put you in an awkward position. You are, after all, on the public record. And, by calling the client’s friends or family members to the stand to testify to the client’s drug habits, you are forever memorializing your client’s illegal activities. At the same time, assuming that you have already conceded your client’s possession of the contraband in this particular case, being found guilty of misdemeanor drug possession is a helluva lot better for your client than a felony conviction for drug distribution.

The prosecutor will sometimes spend an inordinate amount of time “qualifying” the witness as an expert. You can turn this to your advantage. Let the expert go and on about how much he knows about drugs and drug distribution.  Then test the extent of that knowledge. You can sometimes get him with a simple question. Okay, Mr. Expert. How many grams are there in a pound? How many ounces are there in an “eight-ball”?  You may be surprised by how many “expert for a day” witnesses have trouble answering these questions.

If an expert witness is helpful in a drug distribution case, he or she can do even more on a DWI or DUI.  Almost everything about a drinking-and-driving case is supposed to reflect hard science. According to the National Highway Traffic Safety Administration, for example, proper administration of the standardized field sobriety test is supposed to indicate a base-line level of intoxication within a reasonable degree of certainty. But, as the training manual used in D.C. to train police officers itself acknowledges, any deviation from the prescribed procedure seriously undermines the validity of test results. Police officers are not always well-trained. And they love to freelance, adding their own particular twists to established procedures.

The science associated with breath tests is even more complicated, as the recent problems with the Intoxilyzer 5000 EN in D.C. demonstrate. Use of a suspect’s breath alcohol content as a surrogate measure for blood alcohol content requires a number of complicated extrapolations. As I have already discussed elsewhere on this blog, any problem in calibrating or operating the machine would undermine the validity of test results.  Again, that’s where expert testimony comes in.

Expert witnesses are unfortunately very expensive. Not everyone can afford one. An expert for a DWI case in D.C., for example, will cost thousands of dollars. At the same time, it is almost always money well spent. It can sometimes be the difference between conviction and acquittal.

A couple of days ago, I crowed about the advantages of being a privately retained lawyer, as opposed to public defender. In fairness, I should note that private practice as a solo practitioner also has its downsides.

Yes, there is also a lot of paperwork as a public defender.  And yes, there may be some bureaucracy. But, for the most part, a public defender is freed up from many administrative and other responsibilities so that he or she can focus on the practice of criminal law.  Experience is experience, even if at times it seems like too much experience.

There are people to keep the supply cabinet full and to balance the books.  Depending on the size of the organization, there may be social workers, mental health experts, and personnel to handle probation and parole matters.  If the computer crashes or if there is a problem with a printer, you call the technical people and they come right over and fix it.  “Runners” pick up and deliver paperwork to the courts.  Paralegals and clerical staff reformat and submit motions, prepare sentencing guidelines, and handle the paperwork for expungements.  In addition, there is often an appeals division.  If you have a question about a particular case, you can sometimes talk to the very lawyer who argued it before the state’s supreme court.

You don’t have this support network as a private attorney out on your own. Unless you are successful enough to hire clerical staff or an associate or two, you have to do all these things yourself.  This is what I was thinking yesterday as I stood in line at the D.C. Metropolitan Police Department headquarters, trying to figure out the labyrinthine system for obtaining a piece of paperwork for a client.  What was it about private practice that I thought appealed to me so much?

D.C. police have recently admitted what criminal defense lawyers have long been claiming; namely, that the Intoxilyzer 5000 EN machine, which is used in the nation’s capitol to measure a suspect’s blood alcohol content after an arrest for DWI or DUI, has not been operating properly.  As a result, the Office of the Attorney General in D.C. has been reducing or dismissing charges against hundreds of people arrested by D.C. police over the last couple of years under suspicion of DUI or DWI.  According to the Washington Examiner, the time period in question is October 2008 to February 12, 2010.

Anyone arrested by the Metropolitan Police Department for DWI or DUI during this time period should contact his or her lawyer to see if relief might be available.  I will contact my own clients who may be affected by this development directly.  It is still unclear how this news might affect people arrested by either Capitol or Park Police.

Now that I have moved back to D.C. and opened my own criminal defense law firm, former colleagues at the Defender Association of Philadelphia have asked me how I enjoy private practice.  For them and for other public defenders who might be thinking about making the transition, I offer the following five advantages to being out on your own.

1.  Clients Don’t Question Your Law Degree.

A client once turned to a colleague of mine at the Philadelphia public defender’s office after she had just won a big case on his behalf.  “You’re very good,” he told her.  “You should think about going to law school.”  It’s true.  Many clients do not think public defenders are real lawyers.

2.  Clients Like You.  You Like Them.

Many defendants do not like public defenders for no other reason than that they are public defenders.  “I want a paid lawyer!”  You only value what you pay for.  And while it may sound harsh to suggest that public defenders don’t like their clients, the fact is, it is difficult to develop the same relationship you have with a client to whom you can devote your undivided attention. By the time you get around to interviewing your fifteenth client of the day, you are just not the same person you were when you interviewed the first one.

3.  You Can Pick Your Clients.

A couple of years after I started working at the public defender’s office, I inherited a case in which the police found our client outside a corner store where the burglar alarm had just gone off.   When the police entered the store, they found a cell phone with the client’s photograph on it in a plastic bag containing goods from the store. The police asked our client how her cell phone had gotten into the store, and she responded that her two-year-old baby must have thrown it there through a window.  As the detective testified at the preliminary hearing, this would have meant that the baby threw the phone threw a closed window.  The cell phone would then have had to make a 90 degree turn right, travel down 15 feet and then drop into the bag, where the bag then tied itself up.

After further questioning of the client in which she gave equally implausible explanations, the police eventually took her to the district building, Mirandized her, and then took a full confession.  Acting on the probable cause based in part on this confession, the police later returned to her house with a search warrant and recovered other stolen goods from the corner store in her house.  To make matters worse, at a previous trial date, the client got impatient that her case had not yet been called, and exclaimed to the entire court that she just wanted to plead guilty and get the whole thing over with.  The judge recused himself.  Thus, the new trial date at which I was running the list.

The client didn’t return my phone calls or come in for a pre-trial interview.  But I knew I was progressing as a trial lawyer when I looked at the facts of the case and, instead of cringing and wondering what I was going to do with the case as I might have done when I was first starting out, I concluded that I could beat the case.  Specifically, I litigated a pre-trial motion to suppress in which I asked the judge to exclude from trial all of her statements, including the Mirandized confession, as well as evidence gathered through execution of the search warrant as the tainted fruit of illegal police conduct.

They should have taken her into custody and Mirandized her as soon as they recovered the cell phone in the corner store.  Instead, they let her dig herself deeper and deeper into a hole, and only Mirandized her after she had incriminated herself to such an extent that she felt she had no option but to confess.  Everything after that point was the tainted fruit of the illegal police conduct and should be suppressed.  With only my client’s cell phone in the store left to explain, I thought we might have a fighting chance of beating the case.

While I was wrong (the judge denied my motion, and my client eventually pleaded guilty to second degree burglary and was sentenced to 18 months probation), the point is, there are no difficult cases.  But there are difficult clients.  And, as a private attorney, you have the luxury of turning away these difficult clients.  Yes, they are entitled to counsel.  But that counsel doesn’t have to be you.  For every lawyer who turns down a client, there will be two lawyers who will take the case.

I was talking with a colleague of mine who does mostly white collar cases and who works out of his home.  You aren’t concerned about bringing clients into your home, I asked him?  No, he said.  I wouldn’t want to represent anyone I wouldn’t invite into my home.

While I myself am not able to be quite so discriminating, it does feel good to turn down a client when things just don’t feel right.  I was talking with a potential client the other day on the phone. I’m not quite sure what it was, but I was getting the wrong vibrations.  You know, I said finally.  I don’t think this is going to work out.  You should look for someone else to represent you on this matter.

The same option is available to the potential client who doesn’t like something about me.  As a result, neither the client nor the attorney are forced on each other.  You don’t end up with an attorney and client who are not comfortable with each other, a situation that is highly anathema to effective representation.

4.  Clients Listen to You.  They Take Your Advice.

This afternoon I was watching one of my colleagues represent a defendant he had been appointed by the court to represent on a felony gun case.  The purpose of a preliminary hearing in D.C. is to determine whether or not there is probable cause to send a felony case to a grand jury. My colleague did the best job he could with some bad facts and a cagey narcotics officer who wouldn’t allow himself to be pinned down on the record.  Not surprisingly, the judge decided to hold the case over for the grand jury.  She also refused my colleague’s attempts to get his client released from custody.

At this point, unhappy with the situation, the defendant decided he wanted to address the judge directly.  Despite adamant warnings from both the judge and his lawyer, the defendant persisted, and the judge eventually relented.  It wasn’t quite as bad as a client I once had who yelled out in court as the police officer testified:  “He’s lying! There weren’t two guns.  There was only one!” Nonetheless, in seeking to exonerate his co-defendant who was in the car with him when the gun was recovered, the defendant clearly incriminated himself in a public forum.

While all the defense lawyers sitting the room had to cringe, the statement was obviously most painful for my colleague. My colleague is an excellent trial attorney, and I couldn’t help thinking that the defendant would have taken the lawyer’s advice to remain silent had the lawyer not been court-appointed. The fact is, defendants don’t trust court-appointed lawyers to have their best interests at heart.  Many clients often told me when I was in Philadelphia that, since I was paid by the same state that had brought the charges against them, I was probably working for the prosecution.

As it is, I have noticed a tremendous difference in the respect paying clients afford me.  I am the same lawyer I would be if the court had appointed me.  But again, the difference is that the paying clients have chosen me. They have used their hard-earned money, sometimes dipping into their savings, to pay me.  There is no question about my loyalties.  It is very difficult to represent a client effectively when the client doesn’t trust you.

5.  The Court Values You and Your Time.  You Get to Go First.

I represented a client yesterday at a court listing on a DWI charge.  I ushered him past all the other people standing in line outside the courtroom waiting to be admitted, and he was seated in a special section of the courtroom — the jury box — set aside for defendants represented by private counsel.  Everyone else was crammed into the gallery like sardines. Private counsel cases were called first, and I had him out of there within a half hour. Why? Now that I am a paid lawyer, my time is suddenly much more valuable.

This was in marked contrast to the years I spent as a public defender, when I occasionally had to suffer the humiliation of having a ready case stepped back from the bar when a private attorney appeared with a client with a case to try.  Oh yes, Mr. Smith.  Let’s get your case taken care of.  I know you must have other listings you need to get to.  Mr. Koehler.  Would you ask your client to take a seat back in the gallery?  We’ll get to his case in just a moment.

Maybe it was just Philadelphia.  Maybe it was just certain judges. I always understood when it happened, and, truth be told, it didn’t happen all that often.  But, when it did happen, it sent an unmistakable signal to everyone in the gallery of two things.  First, it signaled that the court did not value the public defender’s time as highly as the private counsel’s.  Secondly and more importantly, it signaled that the court did not value the rights and time of a defendant with court-appointed counsel as highly as the defendant with paid counsel.  And we wonder why indigent defendants don’t trust the system.

I didn’t begin this entry intending to complain yet again about the woes of being a public defender.  Wasn’t it just me who in a recent post told public defenders they should stop whining and move on?  But complaining is where I ended up.

My perspective is obviously very much influenced by the time I spent working as a public defender.  And as I’ve been able to witness first hand the benefits of working as private counsel (I do not yet take court appointments in D.C., and don’t know if I ever will), I’ve developed new insights into the challenges faced by public defenders, challenges I was not fully able to appreciate while I was facing them directly.  You can sometimes lose your perspective when you are in the middle of things.

That’s not to say that there aren’t also challenges to being a private defense attorney.  For one thing, you spend a lot less time practicing law and a lot more time pounding the pavement for business. I was at an ABA meeting yesterday at which a senior attorney – a solo practitioner – was asked how much time a new attorney should expect to devote to marketing.  You work on your existing cases, he responded.  You sleep.  All the rest of your time you spend on marketing.  And that part never ends.

At the same time, when all is said and done, I have found that the challenges of being a paid lawyer are definitely worth it.  As a former colleague told me a year or two after she left the public defender’s office, at a time when for me the prospect of going into private practice was still in the distant future:  If I knew it was going to be this much fun, I would have done it a lot sooner.

Scott Greenfield of Simple Justice wrote a complimentary piece about this blog earlier this week. While I was very flattered to be described as “one of the newest and brightest additions to the blawgosphere,” Greenfield continued to encourage me to change the name of this blog.  Wrote Greenfield in a postscript:

“Jamison, attempting to straddle the marketing blawgosphere and the substantive blawgosphere, goes by the name Koehler Law Blawg in the hope that it will draw business to him, while allowing him to write substantive posts and participate in the blawgosphere.  While his posts are interesting, his writing is excellent and he’s got much to offer, my emphasis on the substantive blawgosphere rather than the marketing blawgosphere precludes my linking to his ‘marketing name.’ I hope that asides such as this will push Jamison to forego the marketing angle and give his blawg a real name, so that I can provide more helpful link love in the future.”

Jamie Spencer, referring to himself as “The Other Jamie,” offered a different perspective:

“I’m going to respectfully disagree with your characterization of Jamie’s blog title as an overly SEO type name. Calling it the ‘Koehler Law Blog’ is not going to be particularly helpful to any potential marketing efforts. Anyone looking for him by name, is probably a past client, or has been referred to him, and he probably ranks fairly high up in the natural Google results for people who query any variation of his name and the words law, lawyer, criminal defense, etc.

Now, on the other hand, if he had gone live with some ridiculous title like ‘The Washington D.C. Criminal Defense Lawyer Blog’ … that would be another story.”

Spencer wrote the last sentence with a touch of irony.  He practices criminal law in Austin, Texas.  The name of his blog?  Austin Criminal Defense.

Greenfield is absolutely correct in saying that I use this blog as a marketing tool for my law practice.  It’s true.  I do. I use it at least in part to increase traffic to my website, which is targeted at potential clients in the D.C. area.  But, as I told Greenfield in a comment to the entry, I did not choose the name as part of this marketing effort. No, he has only my lack of imagination to blame for that.  “Koehler Law Blog” is certainly better than the name that originally appeared on this blog:  “Blog.”

I am certainly not wedded to the name, and would welcome any suggestions. Greenfield offered to organize a contest to re-name the blog, but he warned that he couldn’t do that unless I agreed to accept whatever name the winner came up with. And the result of that, he said, might not be pretty. Instead, I might need to put my father to work on this. My father, after all, is the man who came up with “Because It’s Zayre!” for the old department store of the same name. Maybe if the store had listened to him, it wouldn’t have gone out of business.

The problem with being a latecomer to the blogging business is that all the good names have already been taken. For example, if you ever participated in the same fantasy football league as I, you would know that my two favorites team names are Not Guilty (zero wins and three losses) and Res Ipsa Loquitur (one win and two losses).

Take “Not Guilty,” which would be my undisputed first choice.  There is nothing sweeter to a criminal defense lawyer’s ear than those two words.  They evoke the thrill you feel in the stunned moment of silence after the verdict has been read when the client turns toward you with that look of surprise and disbelief.  Do you mean I can go home now?  The first time I heard those two words, I had to suppress the great feeling of elation that came over me. I didn’t want to gloat or to appear unprofessional.  But I have to admit that the client and I did high-five each other out in the hallway when no one else was looking.

Unfortunately, “Not Guilty” has already been taken.  Actually, it has been used a couple of times.  One of my favorite bloggers, Mirriam Seddiq, has done justice to the name in her blog.  She herself had to change the name to “Not Guilty No Way” when she found out that someone else had already claimed the name.

“Res Ipsa Loquitur” would be my second choice.  I don’t know what it is about that phrase that has always appealed to me since I first heard it in Torts class during first year of law school.  Said the professor at the time:  “I am about to teach you a great Latin phrase which you can all use to impress your families over the Thanksgiving holidays.” Maybe it’s because the term bespeaks a certain elequence and plainspokenness:  “the thing speaks for itself.”  But that name too is already being used, again very ably, this time by Jonathan Turley.

If I were inclined to use Latin, the other phrase that has always appealed to me is Fiat Justitia, Ruat Caellum.  While the Latin itself is kind of cumbersome, the translation into English is poetic: “Let Justice Rule, Though the Heavens May Fall.”  But it’s too long.  Besides, as someone told me, the phrase could be misinterpreted. The Europeans, for example, use a similar phrase when they intend to be sarcastic.

For the time being at least, absent any bright ideas from my father or anyone else, I am left with the name as it is.  I also note that, despite Greenfield’s threat not to add this blog to his blogroll until I changed the name, my blog did in fact appear recently on the Simple Justice blogroll.  Greenfield did this quietly when he thought no one was looking.  Please don’t tell him I noticed.

One of my favorite episodes from the old T.V. show Taxi included the scene in which the Reverend Jim Ignatowski, the character played by Christopher Lloyd, accidentally burns down the apartment of Louie DePalma, the character played by Danny DeVito.  The Reverend’s father is a millionaire.  When the father finds out that his son has burned down the apartment, he writes out a blank check to DePalma and tells him to fill in whatever amount he believes is fair.

DePalma is left with an almost impossible decision to make:  How greedy can he be without causing the father to change his mind?  Finally, after much agonizing, DePalma arrives at an amount he believes will do the trick.  I can’t remember the exact amount but it was something like $242,100.02.  This amount, he concludes, allows him to squeeze every possible cent out of Jim’s father without causing the father to reconsider his generosity.

Satisfied with this number, DePalma calls the father and informs him of the carefully arrived at amount.  DePalma is then crushed when the father’s response is:  “Oh.  Is that all?  I thought it was going to be much more.”

I had a similar feeling while studying for the Virginia Bar over the past couple of months.  On the one hand, I wanted to pass the bar.  On the other hand, I didn’t want to spend a second longer studying for the bar than I needed to.

So how much is enough?  If I recall correctly from the first time I took the bar in Pennsylvania, BARBRI assures you that if you follow the recommended schedule and study for 8 hours a day for 10 weeks, for a total of 560 hours, you can be pretty confident that you will pass.  BARBRI refrains from saying:  Of course all that could change if you are either really smart or really dumb.

I wasn’t sure whether BARBRI was including the class time or not, but I assumed they were.  I clocked my hours, and ended up studying for a total of 450 hours over a 10 week period.  This amounted to an average of 6.5 hours a day.

I had no idea how many hours I should devote to studying for a second bar three or four years later.  But, taking the advice of my friend and colleague Christopher Guest, I bought some old BARBRI books and outlines off of Craigslist last fall and began studying a few hours a day shortly after Thanksgiving.

The multi-state material came right back to me.  Although I never thought I would ever have to learn Shelley’s Rule or the Rule of Worthier Title again after passing the Pennsylvania bar, I found that it was much easier to learn it a second time. And I enjoyed working through the practice multiple questions, particularly at times when I was too tired to do anything more intellectually taxing.

But I did struggle with the state-specific materials for the Virginia portion of the exam.  As I mentioned earlier, I never took secured transactions, commercial paper, or creditors’ rights in law school and those topics were not on the Pennsylvania bar, so I had to learn all of those topics from scratch.  And Virginia civil procedure and local governments are so boring, they make me glad I decided to become a criminal defense lawyer.

While I didn’t clock my hours as carefully as I had done the first time, I estimate that I studied for about 250 hours.  In hindsight, I think this was too much for a person taking a second bar.  The bar examiners throw a wide net but they don’t go too deep.   All you really needed to know on civil procedure, for example, were the basics:  personal jurisdiction, subject matter jurisdiction, and supplemental jurisdiction.  And, despite all of the very detailed information on local governments in the BARBRI materials, all you really needed to know on that topic was whether or not a city, town, or county in Virginia is immune from tort liability.  In the few instances in which the bar examiners did go a little deeper, the more detailed questions tended to be asked as sub-questions.  You could miss the sub-question entirely as long as you were able to make up the points elsewhere.

That said, of course, it is always better to be safe than sorry, and this was the thought that kept me studying long after I had tired of it.  Who needs the humiliation of failing the bar? Who needs the hassle of going through the whole thing again for the next bar?  We’ll see. The Board of Bar Examiners has promised to release the February 2010 results by April 23, 2010.  Just enough time to sign up for the July 2010 bar.