This whole “transitioning my practice to Baltimore” thing may be more difficult than I had been thinking. I met with my Maryland mentor last week. It is great that the Maryland Professionalism Center offers this opportunity for people who have just passed the Bar, and I was fortunate to be assigned to this particular person. My mentor practices criminal defense …
Q: Officer, you testified on direct that when you first saw my client, he was driving southbound on 7th Street? A: Yes. Q: You were driving northbound? A: Actually I was parked. I was parked facing north. Q: When you first saw my client, he wasn’t speeding, right? A: Not that I’m aware, no. Q: He wasn’t swerving? A: No. …
I got held up on my way to Union Station today. Or at least I think I did. I had finished up early at court and was heading over to the station to catch the next MARC train, and I was walking through what you could euphemistically call a “transitional” neighborhood near the food kitchen on E Street. I was …
Whenever you walk into a store, it doesn’t matter how busy the staff may be, the clerk should immediately acknowledge your presence. Good afternoon, sir, the clerk should say. I will be right with you. You forgive a lot once these words have been spoken. Please, you respond graciously. Take your time. And you mean it. The same principle should …
BY MR. KEY: Q: When was the last time this particular machine, the one in Government’s Exhibit Number 4, was actually calibrated? A: You mean auto-cal’d? Are you talking recertified or auto-cal’d? Q: All of them. You tell me when is the last time you calibrated this machine? A: That machine I haven’t calibrated. Q: So, when was the last …
In 2010, Thomas Key and Bryan Brown almost single-handedly dismantled the Metropolitan Police Department’s DUI program through a series of remarkable revelations about the inadequacies of the program. In 2011, the two defense attorneys set their sights on the program run by U.S. Capitol Police. Here is Thomas Key cross-examining U.S. Capitol Police Officer William St. Ledger on a sign that …
You buy an axe. The axe consists of two parts, a handle and a blade. After six months, the blade breaks and you replace it with another one. After another six months, the handle breaks and you replace it with another handle. The question they ask in your Philosophy 101 class in college is this: Is this the same axe …
When my daughter was still a toddler, I was strapping her into the child safety seat of an overheated car when she began to blow small breaths. It took me a moment to figure out what she was doing: Having learned that she could cool down hot liquid by blowing on it, she was using the same principle to try …
Midway into my cross-examination of the police officer, the judge calls the prosecutor and me up to the bench so that she can talk to us outside the hearing of the jury. “That line of questioning is objectionable,” she tells me. We spend a few minutes debating this, and I ultimately convince her that the government opened the door to …
I wake up again at 3:00 am but, for the first time in over a week, there is nothing to do but clean up my study. There were positives from the trial: A government expert who could not perform basic calculations, and another expert who messed up the standardized field sobriety test. Other witnesses were caught in basic contradictions. …
Wayne my investigator is a worrier. I am too. Wayne is an early riser. So am I. This means I usually have company early mornings before trial. The two of us sit in our respective home offices on opposite sides of the District, texting each other hours before we need to head over to the courthouse. Alas, because there was …
So I walk into the building for a meeting with our new banker in Baltimore, and I notice that everyone seems to be unusually surly towards me. The security guard tells me to take off my hat, and when I tell him who I want to meet with, he motions me toward a row of chairs and then ignores me …
I have always given out my cell phone number to clients. In almost seven years of practice, I have never once regretted doing this. I even did this as a public defender when I had far more clients than I do today. As a public defender, I looked at it this way: Despite multiple prompts, most of the people I …
When my wife and I first started going to what turned out to be our favorite local restaurant in Arlington, there was a waiter there I mistakenly assumed was also the owner. He was friendly and efficient, he always made sure we were seated and served quickly, and you just needed to look in his direction in order to get …
My children are pleasantly surprised when they see the new house and neighborhood. They are city kids at heart. Although a bicycle is stolen from the garage within moments of our arrival, the perpetrators taking advantage of moving men preoccupied with something going on inside the house, the children walk to the hardware store for some extra surge protectors and …
He is a senior prosecutor. He doesn’t hide the ball or over try his cases. He is pleasant and reasonable, and he lets you know exactly where he is coming from – what he can do for you and what he can’t. I was surprised he went forward with this particular case. As Wayne my investigator says, sometimes there’s just …
Having sold our house in Virginia, we are now renting it back from the new owners. We will do this until we move to Baltimore in July. No longer an owner of this house, I step out of the shower this morning to find a tree guy poking around in our back yard. I stick my head out the back …
Although I am not even sworn in yet, I think I am going to like Maryland practice. I noticed while studying for the bar that the discovery rules are far more encompassing – and rational — than in any other jurisdiction I have practiced. And then, in reading Lenny Stamm’s Maryland DUI Law, I came upon what Stamm refers to …
Guest Post by Mary Anne Brush We can all agree that smart kids sometimes do stupid things. Studies show that the teenage brain is not fully developed, which leads to impulsive decision-making. And who doesn’t believe an important part of raising children with character is holding them accountable for their actions? I work at a school, where I often hear …
I passed the Maryland Out-of-State Lawyers’ Bar Exam. It was not a slam dunk. I probably over-prepared the last time I sat for a bar – that was the full, two-day Virginia bar exam I took in 2010. So confident was I of passing that exam that I walked out an hour early on the second day for both the …
Although I may not be a gamer like Ken White of Popehat, I have been playing some Hearts on the Internet recently. I love the game of Hearts. I have gotten pretty good at it over the years. And I can never get my children or anyone else to play it with me in person anymore. The games go quickly …
McCormick on Evidence points out that you should avoid referring to “the exclusionary rule” in the singular: Discussions sometimes assume the existence of “the exclusionary rule,” suggesting that there is only one remedial requirement involved. This is unfortunate and misleading. Litigation and discussion is often dominated by considerations of the Supreme Court’s construction of the Fourth Amendment to the United …
Like Kramer asking for extra MSG on Seinfeld, I think I am going to put myself on a “please call” list for marketers. Just kidding. Some marketing guy from Avvo called me the other day, and I shut him down the same way I shut down most marketers: I told him I am so swamped with business that I couldn’t …
In Pennsylvania, the offense is known as endangering the welfare of a child. In D.C., it is cruelty to children and, as the D.C. Court of Appeals pointed out recently in Mitchell v. United States, 64 A.3d 154 (D.C. 2013), you cannot read too much into the title of a criminal offense: The title is of use in interpreting a …
It happens perhaps most often in domestic violence cases that the complainant fails to show up on the morning of trial. The government would have you believe this is because the complainant fears for his/her safety, and this might sometimes be true. More often, it is because the complainant has reconsidered having the lover, spouse, or family member locked up …
The U.S. Supreme Court has made such a mess of the Confrontation Clause line of cases that the D.C. Court of Appeals declared today that it really doesn’t know what to do. So it decided to do the right thing instead. In Robert Young v. United States, 63 A.3d 1033 (D.C. 2013), the D.C. Court of Appeals decided to essentially …
The D.C. Court of Appeals took another step last week in defining what up until recently has been a poorly defined term: the “significant bodily injury” that is required in order for the government to prove felony assault. Although the appellant in Fidel Quintanilla v. United States, 62 A.3d 1261 (D.C. 2013), was convicted of multiple felony offenses, including robbery, …
When people talk about evidence being admitted at trial, they tend to think in terms of physical evidence: guns, drugs, documents, fingerprints, DNA, that type of thing. Sometimes you need to remind them that oral testimony alone – someone getting up on the stand and testifying to what he or she saw – can also serve as the basis for …
At the Defender Association of Philadelphia, the office policy in multi-defendant cases was to represent the defendant with the most serious charges, the worst fact pattern, and the worst legal posture. The other defendants would then be farmed out to court-appointed lawyers. Although nobody ever explained the rationale behind this policy to me, I assumed it was based on a …
Sometimes you need to go outside your own jurisdiction to find the right language in support of an argument. For years I have been looking for language that captures the problems — the ambiguity and the over-inclusiveness – posed by use of the police officer’s favorite catch-all phrase, “furtive gestures.” Today I found what is probably the best language I …
That a controlled substance can be possessed constructively as well as actually is a court-made decision. As Judge Ruiz put it in her concurring opinion to Rivas v. United States, 783 A.2d 125 (D.C. 2005), the “doctrine of constructive possession is a judicially developed theory of liability designed to be a ‘proxy’ for actual possession.” The government needs to prove …
When we lived in Philadelphia, I used to read a daily column in the Philadelphia Inquirer written by a sportswriter named Bob Ford. I also played softball every Sunday with a guy named Bob Ford. At first it did not occur to me that the Bob Ford I played softball with every Sunday had anything to do with the Bob …
“I messed up again, and I have no excuses. I am ready to face the consequences of my actions.” This is what the defendant says to the court at her probation revocation hearing. Other defense attorneys and I hear this from the gallery where we are waiting for our own cases to be called. We look at each other and …
Guest Post by Kelly Spencer A few days ago, as my attorney and I approached the courthouse, 10 minutes before my divorce trial was scheduled to begin, he reached out to open the door for me. I paused, and said, very quietly, “At this moment I trust four people in the world. My mom, my dad, my kid. And you.” …
The D.C. Court of Appeals was apparently feeling charitable. In Adrian Lee v. United States, 61 A.3d 655 (D.C. 2013), a decision issued last week, the Court bent over backwards to justify and explain mistaken jury instructions issued by the trial judge. Even as it reversed him. Adrian Lee was convicted of voluntary manslaughter and of carrying a dangerous weapon …
The Washington Post held a contest a couple of years ago in which it asked school teachers to send in examples of the worst analogies they had ever encountered in grading student papers. Below, with thanks to Ruth Hamburger, are some of my favorites. He was as tall as a 6’3” tree. John and Mary had never met. They were …
Back in the days my children were involved in organized sports, coaches liked to tell the story of how former NBA Superstar Michael Jordan was cut from his 10th grade basketball team. The story tended to come out right before cuts were made, presumably to ease the sting for those kids who weren’t going to make the team. The notion …
One of the disadvantages to practicing law in D.C. is that the courts here do not use the Federal Rules of Evidence (FRE). You can’t just consult the text of a particular rule and then the case law that interprets that rule. Instead, you have to go directly to the case law or statute. This makes things unnecessarily burdensome. What …
Rule 41 of Keith Evans’ Common Sense Rules of Advocacy is what he calls “Newton’s Rule.” Isaac Newton’s third law of motion, of course, was that for every action there is an equal and opposite reaction. Evans applies this rule to trial advocacy to suggest that you never want to get into a confrontation with your finder-of-fact, whether that’s a judge or …
During my freshman year at college, there was an older guy at my fraternity everyone used to call “Heeb-heimer.” That was a play on his real name, which was Hartheimer. He was Jewish. I used to call him that too. Actually, I called him “Hee-Heimer.” I had never heard of someone being called a “Heeb” before, and since he was …
When I was a boy, we used to sing a German song called “Du Liegst Mir Im Herzen.” Taught to us by a German friend, we sang it so often, usually in rounds, that I knew all the words without understanding what they actually meant. I can still hear my three sisters harmonizing on the song today. Later in life …
The “corroboration rule” requires the government to introduce “substantial independent evidence” establishing the trusthworthiness of a confession before that statement can be submitted to the jury.
There are certain reference materials that are essential to a law practice. In the case of a criminal defense practice in D.C., for example, you could not get by without the D.C. crimes code, jury instructions, rules of evidence, sentencing guidelines, the two volumes of the Criminal Practice Institute’s manual, and some type of legal research service. In addition to …
Although you might think that invoking your right to remain silent and invoking your right to a lawyer would have the same legal effect, you would be mistaken. In fact, if ever forced to choose, you should always ask for a lawyer. Police can resume interrogation after a period of time when you invoke your right to remain silent. But …
A couple of years ago, shortly after we moved back to Arlington, I decided to stroll by our old house, just a mile or so from where we live now. I was standing in front of the house, admiring the improvements the new owners had made to the front yard, when the woman drove up in her mini-van. I was …
It turns out that Wayne, my investigator, and I both do the laundry in our households. Apparently, neither of us has a wife who understands that you cannot put whites in with the colored clothes, set the dial to hot water, and then expect to have the whites coming out like they looked before. As I tell my wife, you …
As soon as I have the signed order in hand, I head to the “at-risk” cell block to make sure my client is released. My client’s mother, waiting in the hallway, is mad at me. She thinks her son is out-of-control and needs to be locked up, and we have been working at cross-purposes throughout this case. He comes and …
My investigator Wayne Marshall gets an A+ for his testimony yesterday at trial. Of course, I am biased. Marshall is everything you could want in a witness: He knows his stuff. He is well-spoken, direct, straight-forward. He answers the questions you ask of him and nothing more. He doesn’t try to anticipate what he thinks you want him to …
One of the first things they told us during training at the public defender’s office in Philadelphia was that, although they could help us develop many of the skills we needed to become successful trial lawyers, they could not help us with our trial personas. That was something we had to develop for ourselves. And there was no one-size-fits-all approach. …
My wife is not real picky. That is fortunate for me. Otherwise, she might never have decided to marry me. We were visiting different neighborhoods in Baltimore this past weekend in advance of a possible move there next summer, and we happened to run into a woman on the street who turned out to be realtor. The woman was the …
Yes, they record your personal phone calls from prison. Yes, they have someone listen to those tapes. And, yes, they sometimes find something on those tapes to use against you. There is usually a voice recording that periodically reminds both parties — the inmate and the family member or friend he is speaking with – that the conversation is being …
Q: Would you describe yourself as being tough on the bench? A: Demanding. Q: You’re demanding. A: Tough, yes, in the sense that I want lawyers to be prepared. I think that being a lawyer is one of the best jobs in the whole wide world. Q: Really? A: You want to know why? Because every lawyer, no matter whom …
The D.C. Criminal Jury Instructions provide a very helpful explanation with respect to the difference between direct and circumstantial evidence. The bottom line? One form is not necessarily preferable to the other. There are two types of evidence from which you can determine what the facts are in this case – direct evidence and circumstantial evidence. When a witness, such …
Courts seem to be bending over backwards to avoid basing decisions on Arizona v. Gant. In an opinion issued last month by the D.C. Court of Appeals, for example, the defendant was pulled over for a minor traffic offense. The defendant was ordered out of the van and frisked, with the officer finding no weapons. The officer then handcuffed the defendant …
This blog again received the most popular votes in the criminal justice category of the ABA Blawg 100. Thank you very much to everyone who nominated and/or voted for it. Here are the blogs that received the most votes in each category: Business of Law: Divorce Discourse Careers/Law Schools: Inside the Law School Scam Corporate: California Corporate & Securities Law …
Without more specifics, the defendant’s movements were insufficient to arouse a reasonable fear in the officer that Mr. Jackson was presently dangerous.
She doesn’t know it yet but Mindy Daniels is going to be my mentor on all things having to do with the D.C. Court of Appeals.
The last time I sat for a bar exam – in Virginia in 2010, after taking the Pennsylvania exam in 2006 – I swore to myself that I would never, ever do it again. Filling out the application for the character evaluation was bad enough. Learning umpteen new subjects in which I had no interest and then sitting for two …
Here are 15 reasons I prefer D.C. Superior Court to the Criminal Justice Center in Philadelphia: There is a cafeteria. There is a lawyer’s lounge. There is a legal library. Women in orange jackets greet you when you come into the building and direct you to where you need to go. You can get into an elevator. When you can’t …
Interdum minus fit plus. This is Latin for “sometimes less is more.”
As recent D.C. case law demonstrates, the distinction between general and specific intent crimes is both simplistic and potentially misleading.
One of the problems with bad law is that it leads to even worse law. I have never been a big fan of the U.S. Supreme Court’s decision in Illinois v. Wardlow, which held that being in a “high crime” area (what part of any U.S. city does not have a lot of crime?) and running away at the sight …
I am standing with my niece in front of my father’s bureau, and I show her the gold-plated watch with the “Hamilton” typed out across its face. My father loved pocket watches and there are a couple of them still sitting on his bureau so it takes me a moment to find the right one. The watch I select is …
If constructive possession is a legal fiction, then joint constructive possession is a double legal fiction.
If you want to get a complainant to speak with you before trial, ask the complainant about his or her injury. People love to talk about how they have been wronged. The floodgate opens. My investigator Wayne and I approach an interview with the complainant as if we are preparing for the Superbowl. After all, in some cases, you only …
I put our star witness in jail. I have heard about prosecutors being slammed for doing this. One of my adjunct professors in law school – a prosecutor in Philadelphia – ended up on someone’s list of the top ten worst prosecutors in the country for having one of her witnesses in a murder case sit in custody for two …
Crawford held that a “testimonial” statement can only be admitted if: (1) the government can prove that the witness was unavailable to testify, and (2) the defendant has had a prior opportunity to cross-examine that witness.
I get a lot of strange emails and phone calls from people who find me on the Internet. A woman wrote me the other day looking for help with all sorts of different legal problems – from personal injury to child custody to criminal matters. It was unclear from the email whether she was the victim or the accused. And …
One of the reasons I accept court appointments in juvenile cases — as opposed to adult cases — is that juveniles generally listen to you. But even then you cannot take that for granted.
Seth Godin writes about a friend of his, a middle school teacher, who avoided the teacher’s lounge because “he couldn’t bear the badmouthing of students, the whining and the blaming”: Just about every organization, every on-line service, every product and every element of our culture now has chat rooms and forums devoted to a few people looking for something to …
Right to confrontation applies to testimonial statements of a non-appearing witness unless (1) the witness is unavailable and (2) the witness was subject to prior cross-examination.
He was the angry and alienated younger brother of my best friend while I was growing up. My mother sent me newspaper clippings about him when he was a member of a grunge rock band of local renown. She didn’t need to send me anything when he became nationally and then internationally known: Spin magazine put him on its cover …
The Jencks Act,18 U.S.C § 3500, requires the prosecution to turn over any “statement” of a prosecution witness that relates to subject matter at issue.
The general rule on “bolstering” is that you are not allowed to sing the praises of your own witness until that witness has been challenged or impeached.
Bias is “the powerful distorting effect on human testimony of the witness’s emotions or feelings towards the parties or the witness’ self-interest in the outcome of the case.”
This, from Prosecutor’s Discretion, says it much more persuasively than I ever could: Facebook, Twitter, Myspace (anyone use that anymore?), google+. I’m on record by saying I love them all. People need to brag about their crimes and what better way than in writing on Facebook. They love to threaten witnesses. They connect with a group of friends, which makes it easier to show …
Here are 11 rules for effective writing, with thanks to Kendall Gray of The Appellate Record for reminding me of them: Avoid alliteration. Always. Prepositions are not words to end sentences with. Avoid clichés like the plague. (They’re old hat.) Eschew ampersands and abbreviations, etc. One should never generalize. Comparisons are as bad as clichés. Be more or less specific. …
I am watching what has to be the best cross-examination at a probable cause hearing I have ever seen. It is a new attorney from the Public Defender Service (PDS), someone I have never seen before, and he is handling the cross-examination like he is Irving Younger. He is pleasant but firm. He moves methodically through the facts, pinning the …
The Associated Press reported on the lawsuit filed yesterday in federal court in San Francisco alleging that current and former members of the U.S. military were sexually assaulted while serving: The 20 women and men filing the lawsuit claim they were harassed, raped or assaulted and suffered retaliation when they reported the incidents. The lawsuit names top Department of Defense …
Previously convicted of a felony, Michael Myers was arrested while carrying a garbage bag that contained the disassembled parts of a shotgun. Was he guilty of being a felon in possession of a firearm?
Driving without a license has long been a strict liability criminal offense in D.C. That is, in order to secure a conviction for this offense, the government need only prove that you didn’t have a driver’s license at the time you were driving. It does not need to prove any type of criminal intent or guilty knowledge; in this case, …
Today’s legal maxim is not particularly eloquent, in either Latin (acta exteriora indicant interiora secreta) or English (“outward acts indicate the thoughts hidden within”). But I include it today because it deals with intent, which is a key concept in criminal law. Men rea (or “state of mind”) is an element of most criminal offenses. And since the finder of …
He was the best octopus hunter in Tolo. It was always an honor whenever he sent one of us boys out to the kiosk to buy him cigarettes: Karelia ke spirta, parakalo. It was an even bigger honor if he invited you along to hunt for octopus. He did the diving. You stayed on the surface, holding onto the octopi he …
It is hard not to like someone who has thrown in her lot – however temporary that may be – with one of your children.
She is obviously a person of good taste.
“Readily available” is defined in Washington, D.C. as being in close proximity or easily accessible during commission of crime of violence/dangerous crime.
Guest Post by Emma Brush A visit to Arlington was the occasion for this undeserved opportunity of mine to post. Originally, my Uncle Jamie had a jury trial scheduled. Knowing that I was considering law school, he thought it would be fun for me to see. Unfortunately, the court date was postponed. Fortunately, he had a juvenile case that was …
According to Rule 3.8 of the D.C. Rules of Professional Conduct, a prosecutor in a criminal case shall not: “[i]ntentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused …
On the morning of trial, the prosecutor finds out that the testimony provided by a police officer at the preliminary hearing was inaccurate. Although the prosecutor himself is not planning to call this particular police officer to testify at trial, he knows that the defense attorney is. So what does prosecutor do? Does he immediately contact the defense attorney to …
After a guest post by my brother turned out to be one of the most popular pages on this site, I had hoped that the classics scholar was going to be a regular contributor on this site. Alas, my no good brother has turned out to be a complete slacker with better ways to spend his time. So I am …
I walk my client out to the street afterward (“You mean I don’t have to sign anything, I can just go?”), disappointed that, since it is late in the day, there is no one still at the courthouse to share the news with. First I get my wife’s voice mail. Then I get my investigator’s. Walking over to the parking …
The Juvenile Services Program at the Public Defender Service (PDS) helps kids adjust to life at one of the District’s secure detention facilities.
If Brady provides a constitutionally protected right to information, legislatures in this country should provide a mechanism to enforce this requirement.
According to D.C. Court of Appeals decision in Wynn v. United States, the actions of police officers responding to a crime scene do not fall within the definition of “due administration of justice in any official proceeding.”
Your client is cranky with you for the lousy job he thinks you are doing on cross-examination. There are no dramatic “gotcha” moments like you see on T.V. Instead, every time you elicit what appears to be an inconsistency in the witness’ testimony, you pull back, moving onto a new line of questioning. It is almost as if you didn’t …
The standard for proving operating while impaired and driving under the influence is the same; specifically, impaired driving ability to slightest degree.
According to U.S. v. Taylor, police must have reasonable belief for suspecting criminal activity in order to justify a warrantless car search under Gant.
The problem with using a canon of statutory interpretation to justify a legal opinion is that you can usually find some other canon to arrive at the exact opposite conclusion. For example, to support its recent holding in In Re D.M., 47 A.3d 539 (D.C. 2012), the D.C. Court of Appeals used the rule that, whenever possible, different provisions within a …
Over at Tempe Criminal Defense, Matt Brown has been talking about expectations – client expectations and his own. “The angry client rant is tough,” Brown says. And the problem, he says, starts with expectations. Clients expect the system to treat them fairly. They blame their lawyers when it doesn’t: I would like to think that my threshold for having people …
A new D.C. law, which took effect on August 1, 2012, has increased penalties for people convicted of driving while intoxicated (DWI), driving under the influence (DUI) and operating while impaired (OWI). For example, the penalty for a first-time conviction in a DUI/DWI case has gone up from a maximum fine of $300 and 90 days in jail to a …