Rakofsky Dismissed in D.C. Murder Trial

by Jamison Koehler on April 2, 2011

I have always been somewhat suspicious of reports in the criminal law blogosphere about lawyers who misrepresent their credentials or who otherwise fail to meet the needs of their clients. Maybe I am naïve but I have questioned how frequently this actually occurs. And just as anything I might say could be viewed as suspect, I have been struck by the sanctimonious and self-serving nature of these complaints, particularly when coming from a less experienced lawyer such as myself. Implicit in every such complaint is the suggestion that the blogger doing the complaining would never commit such a sin himself.

All of that said, I am on solid ground in discussing a story from the Washington Post about the declaration of a mistrial yesterday in D.C. Superior Court.  It turns out that the out-of-state lawyer who represented the defendant, Joseph Rakofsky, had never before tried a case, despite advertising on his website that he “specializes” in criminal law.  (Rakofsky also states on his website that he “interviewed at a well-respected investment bank with branches all over the world.”  Emphasis added.)

The lawyer encouraged his investigator to engage in unethical behavior and then refused to pay the investigator when the investigator failed to comply. And, according to the Honorable William Jackson, the judge who declared the mistrial and then dismissed the lawyer from the case, Rakofsky didn’t seem to have a clue about putting on a case:  “There was not a good grasp of legal procedures of what was, and was not, allowed to be admitted in trial, to the detriment of [the defendant].”

And did I mention this was a murder trial?  As the Judge stated in appointing a new attorney:  “I was astonished someone would represent someone in a murder case who has never tried a case before.”

The case raises a number of questions with respect to the D.C. lawyer who, because Rakofsky is not licensed to practice in D.C., agreed to serve as “local counsel” on the case to advise Rakofsky on D.C. law and procedure.  In fairness, I have no idea what transpired between Rakofsky and the D.C. lawyer prior to trial, and it was in fact disagreements between the two lawyers during the trial that led the defendant to ask for new counsel.  At the same time, had the D.C. lawyer raised concern with respect to Rakofsky’s competence earlier, a mistrial might have been avoided.  As it is, the defendant will now remain in custody until his next trial which, because of D.C.’s crowded court dockets, could take up to a year.

2 Comments on “Rakofsky Dismissed in D.C. Murder Trial

  1. Well, the Governor of Iowa just put someone who has never tried a criminal case in the whole three years he’s been a lawyer in charge of the State Public Defender’s Office. I am trying keep an open mind.

    He has, it appears, started a chapter of the Federalist Society, though…


  2. The Rafkosky story is shocking and ethically and intellectually indefensible.

    But in the fine tradition of bad facts making bad law, it has led to some unwarranted generalizations by many writers and commentators, generalizations which in my experience do not stand up to careful scrutiny and also do not reflect any consensus in our profession among those who practice criminal law all day every day — deputy prosecutors and deputy public defenders. Full disclosure: the following comments are not based on personal experience — I have never tried a murder case and don’t intend to — but my statements here are based on first-hand observation (and limited to cases in California). I am a former prosecutor in the downtown Los Angeles courts with no fewer than a hundred criminal trials behind me (not a difficult number to achieve in that jurisdiction), and I spent a year clerking for a Presiding Judge of the Criminal Division of the Los Angeles Superior Court. All of that experience was a number (big number) of years ago, but my active network tells me that the situation has not materially changed since my years and, given California’s present interminable fiscal crisis, it is not expected to change much in the near term.

    And maybe it doesn’t need to…

    Attorneys of demonstrated skill in both the Public Defender’s Office and the District Attorney’s Office may try murder and attempted murder cases — not death penalty cases — even while they are still relatively new (2-3 years) to the practice of law. Most likely, those first 187 P.C. or 187 attempts cases will be tried to a judge, not a jury, in juvenile court. In most cases, the first bunch of murders tried by a relatively junior attorney will not involve complicated “whodunnit” fact patterns, advanced forensics (DNA, questionable cause of death, challenged bullet ID’s or blood-sprays, etc.), or complicated documentary evidence (foreign banking transactions, tracing ownership of items through multi-state or international sequences of ownership, technical authentication of esoteric documents) or complex expert evidence (inconclusive blood-typing, insanity defenses, etc). But those murder and attempted cases often involve a large number of contradictory witnesses, many with the kinds of criminal backgrounds that make establishing credibility an uphill slog. Those “routine” murder cases also involve aggravated circumstances of violence, questionable alibis, chain-of-custody problems, competing laboratory analyses, and murky issues as to motive, opportunity and other nuts and bolts of evidence and criminal law and procedure. Many of these cases have their factual origins in incidents of gang violence.

    The notion that these cases are reserved for the special ministrations and gifts of some elite corps of senior or super-lawyers is one that can rarely be honored in a high-volume metropolitan court. And, the plain fact is that living up to that notion may not be necessary: a damn good job is done on these cases, on both sides of the table, routinely and without much ceremony or angst before or after trial. Ask any sitting judge assigned to the criminal panel.

    If you do a little basic keyword research on “ineffective counsel,” you will find that the offices of large-city public defenders acquit themselves very favorably on this key performance marker. Ditto with their counter-parts on the prosecution side if you research “Brady violations,” “prosecutorial misconduct,” and similar hot button indicia of bad lawyering in conjunction with187 cases.

    Death penalty cases are, of course, a whole ‘nother matter obviously.

    I truly didn’t intend to go on so long here, but my years in the daily trenches of criminal practice left me with an abiding respect and awe for the consistently excellent work and dedication of purpose of most prosecutors and public defenders. I know of no more humbling professional experience– or better training for any aspirant to skilled criminal practice — than to watch a number of criminal trials by lawyers of these offices.

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