“He does not see the bend, behind, that will take him from view”
January 26, 2018
“Davon” is dead. This is what his former social worker tells me. I don’t ask for details. That would be rude. Besides, I am pretty sure I already know the answer.
Davon was 13 years old when I first represented him. He and his mother, a woman who referred to herself as “Danger” on her voice mail, moved across town to take advantage of a better housing deal. Davon was bored at the new location, and he kept returning to the old neighborhood to hang with friends. First he was warned: You can’t loiter at a public housing complex. Then he was barred. Then he was arrested for unlawful entry.
At 15 years old, Davon picked up a “purse-snatch robbery.” Except it was a cell phone. Using GPS, police tracked the phone to Davon’s new home, to his school, and, yes, back to his old neighborhood where he was again arrested for unlawful entry.
At 16, Davon was arrested for armed robbery. Reading the allegations, I had a pretty good idea then what might lie in his future.
If this were a Disney movie, Davon and I would have overcome age, racial, and socio-economic differences to forge a bond between us. That proud and dignified little boy would have let down his guard. We would have become, if not friends, well, at least closer. He would have trusted me.
This is not a Disney movie. That impassive face with the dull eyes never once brightened to see me. He never confided in me, even when his defense depended on it. When I visited him at the Youth Services Center or at a group home, he would sit as I talked. Or we would look across the table at each other in silence. His mind was already on other things – what was going on at his unit, perhaps what was on the menu for lunch.
Once, if only for just a moment, I saw a different side of Davon. He had been placed at the Kool House, a juvenile facility in Virginia with a good reputation, and his progress reports were glowing. He got along with his probation officer. More importantly, his father was back in his life.
We were at a commitment hearing to review his progress. I was waiting outside the courtroom with his mother when I saw his father and him walking down the hallway toward us. His gait was relaxed. The two of them leaned into each other as they talked about something. And, for the only time ever, I saw him smile. It was the easy, unguarded smile of a little boy. For that moment anyway, I thought he might be okay.
I don’t represent juveniles anymore, but I occasionally run into former clients in adult court. They call out to me in the courtroom or hallway – “Mr. Koehler, Mr. Koehler!” — and I am always pleased that, after a moment’s hesitation, I can remember their names. Mr. Smith! How are you? How is your mother?
Sometimes they are there supporting a friend. Sometimes they tell me they are there supporting a friend when in fact the docket shows they face their own charges. In either case, I pretend to believe them. It is a fiction that works for all of us.
We catch up. We reminisce. And the moment passes. We shake each other’s hand or fist bump one last time. Then, smiles fading, we turn back to the day. I follow their cases through the system until I don’t anymore.
More like this:
“No Questions, Your Honor”
January 24, 2018
When it comes to cross-examination, I consider myself a minimalist. I figure out what I need from the witness. I tell my version of the story. And I ask the witness to agree with me.
Some lawyers have the witness repeat the testimony from direct. This is inconceivable to me. It was bad enough to hear the bad facts the first time. Why would you ever want to put them back in front of the judge or jury?
Some people repeat the testimony from direct while lacing their questions with skepticism or sarcasm. I think in particular of Cristina Gutierrez. Gutierrez was Adnan Syed’s lawyer in the murder case made famous by the Serial podcast. My colleague Howard Margulies assures me that, back when he shared an office with Gutierrez many years ago as a public defender, she was a first-rate lawyer. But that was before she was stricken with disease and debt. Every question she asked of the government’s witnesses in Syed’s case was dripping with sarcasm.
When warranted, skepticism or sarcasm can be effective but even then, only in small doses. Tone does not convey on the record. This is important for appeals. More importantly, it is rarely effective. Like me, many people are contrarian. We don’t like to be told how we should be reacting. If you tell me I should be skeptical, even outraged, I will look for a reason to prove you wrong: What are you talking about? I don’t think the witness’ testimony is that far-fetched.
My colleague here in D.C., Bryan Brown, does the whole Peter Falk/Colombo thing: “Officer,” he says. “Let me see if I understand you correctly.” He gives you the impression that, of all the people in the courtroom, he is the person who most wants to believe the witness. We are right beside him, rooting for the witness. Like him, we are repeatedly surprised by – and disappointed with — the witness’ vague or contradictory answers.
The final risk of trying to do too much with cross-examination is that sometimes you can end up making the government’s case for it. I have learned this from bitter experience. The burden is on the government to prove its case beyond a reasonable doubt. Don’t fill in holes for the government. Sometimes the best thing – also often one of the most satisfying things – is to say “no questions, your Honor.”
I didn’t say, “Simon says”
July 24, 2017
Q: Officer. You testified on direct that my client was talkative when you first approached his car.
A: Yes. As I began speaking with him, he was repeating himself quite a bit, wasn’t really answering my questions, just kept repeating himself. He kept talking and talking and just wasn’t really cooperative at the time that I walked up to the vehicle.
Q: He was expressing concern about his girlfriend, right?
A: While he was in the car, he was just, he was very talkative as I believe I said, he kept repeating himself. His speech was slurred. He wasn’t directly answering questions. He was uncooperative.
Q: He told you he was looking for his girlfriend —
A: — he kept saying the same thing over and over, he kept repeating himself.
Q: You have just repeated yourself a number of times, Officer. Are you impaired today as you sit on the witness stand?
THE PROSECUTOR: Objection. Argumentative.
THE COURT: Sustained. Next question? . . .
An Ethical Prosecutor Confronts Her Own Witness
May 10, 2017
BY DEFENSE COUNSEL ON CROSS
Q: Ms. Smith, do you have an email account?
A: Do I have an e-mail account?
Q: Yes.
A: I do.
Q: Is it a Yahoo account?
A: No.
Q: What is your e-mail?
A: It’s –
Q: Actually, let me ask you this way. Are you familiar with an e-mail account Tamara1540@yahoo.com?
A: I am not familiar with that account.
THE COURT: I’m sorry. Counsel, could you say it again or spell it out so that we are clear about the spelling of it.
DEFENSE COUNSEL: Absolutely. It’s the email account T-A-M-A-R-A 1540 at Yahoo.com.
Q: That doesn’t ring a bell with you?
A: No.
Q: You have never used that email account?
A: No . . .
PROSECUTOR ON RE-DIRECT
Q: Okay. Ms. Smith, you do have a Yahoo e-mail account, right?
DEFENSE COUNSEL: Objection. Leading.
PROSECUTOR: May I approach with counsel, Your Honor?
THE COURT: Sure. (To witness). If you would step down to one of those jury chairs again, if you would. Thank you.
THE COURT: Okay.
DEFENSE COUNSEL: Two things. First, it’s leading. This is the government’s witness, not mine. Second, she never acknowledged that she had a Yahoo account.
PROSECUTOR: And, Your Honor, I am attempting to impeach the witness. I do have – I would just like to ask her if that is her e-mail account because I have communicated with her through that e-mail account, so if I could just be allowed to ask her again to give the email account with the numbers and ask her if she uses that account. It’s leading, and it would be my intent to impeach my own witness, and it’s just my responsibility as candor to the Court.
THE COURT: Okay.
(Open court.)
THE COURT: Okay. You can come back up to the chair, please. Thank you.
BY THE PROSECUTOR:
Q: Ms. Smith, do you use a Yahoo account?
A: No.
Q: Have you ever used a Yahoo account T-A-M-A-R-A 1504 at Yahoo.com?
A: No.
Q: Have you ever communicated with me through the Yahoo account?
A: I used my school account.
Q: Okay. If I showed you something –
PROSECUTOR: Showing defense counsel what’s been marked for identification purposes as Government’s Exhibit 3. May I approach, Your Honor?
THE COURT: Yes.
BY THE PROSECUTOR:
Q: I’m showing you what’s been marked as Government’s Exhibit 3. Do you recognize this at all?
A: Yes, I recognize it from my I-Phone, yes.
Q: Okay. What is it?
A: It’s a subpoena.
Q: What is this piece of paper right here?
A: It’s a piece of paper from you.
Q: Is it an e-mail?
A: Yes.
Q: Did you respond to that e-mail?
A: I did.
Q: And from what e-mail account did you respond?
A: Well, it says the – it says Yahoo.
Q: Does it say T-A-M-A-R-A 1450 at Yahoo.com?
A: Yes.
Q: Okay. Do you use that e-mail?
A: Yes. . .
At Least There Are No Spelling Errors
April 4, 2017
The President of the United States has access to the best minds in the country. Presumably, this includes people with a basic grasp of grammar and syntax.
“Despite this substantial income figure and tax paid, it is totally illegal to steal and publish tax returns.” This is an 18-word sentence from a statement issued recently by the White House.
First, what is the difference between illegality and total illegality? Understatement makes you sound less like a teenager.
Second, you have to love the juxtaposition of the President’s wealth with the illegality of leaking tax returns. What does one have to do with the other?
Finally, what about the pairing of “stealing” tax returns with “publishing” them? Yes, stealing is illegal. But is it illegal to publish something that is already in the public domain? That is debatable. Maybe that is the distinction. One is illegal. And the other is totally illegal.
We need an adult in the White House.
You Can’t Plead Guilty Without Admitting Guilt
March 22, 2017
I am watching a guilty plea from the gallery. The prosecutor reads out the alleged facts from the police report, and the defendant says, yes, that is what happened. The colloquy continues. The defendant then tells the judge that she is not actually guilty. The only reason she is taking the government’s deal is because her lawyer made her. And, she adds, she just wants to put this behind her.
Nobody should ever plead guilty to something he or she didn’t do. This is the first thing we tell clients before even discussing an offer extended by the government. And I know the defense lawyer standing next this woman. He laid out her options. But he never pressured her into anything.
The woman might think the judge will be more lenient on her if he thinks that she is actually innocent. But that is not the way these things work. You either take the agreement. Or you take it to trial. You cannot have the benefits of a plea agreement without accepting responsibility. And once you have sworn under oath that you committed the offense, to tell the judge that you didn’t is to admit that, one way or the other, you have just committed perjury. This is not great if the case goes to trial. It is worse if you need to take the stand. And it doesn’t do much for the guilty plea.
The defendant wants to continue but now the judge tells her to be quiet: You need to speak with your lawyer.
Nobody likes to be shushed. And people don’t want to speak with their lawyer. They want to make their case directly to the judge. They are convinced that the judge will dismiss the case just as soon as the judge becomes aware of the injustice of it all. But again, that is not the way these things work.
The judge puts on the husher, and the lawyer leans in to speak with his client. But we in the gallery can still hear her. After all, she is not really speaking to her lawyer. Her words are still intended for the judge.
The lawyer asks for a pass.
Love Letter to a Prosecutor
November 11, 2016
Perhaps I should not admit it, but I like the Assistant U.S. Attorneys in D.C. They are generally smart, reasonable and decent people. They know the law. And, like defense attorneys, they are just trying to do the right thing.
My introduction to prosecutors – the assistant district attorneys in Philadelphia – was not a positive one. My experience in Virginia was even worse. The junior prosecutors tended to be law-and-order people right out of law school who believed that the path to success lay in prosecuting every misdemeanor to the max. Everything was a competition, a battle of good against evil. They did not seem to understand the way their roles differed from those of the defense attorney. The older prosecutors – the ones who had been there forever — had the same mindset. They were also grumpy, bored, and unfulfilled.
It was therefore a welcome surprise to come to D.C. Superior Court where, with the exception of traffic and juvenile cases, most crimes are handled by Assistant U.S. Attorneys, who are federal prosecutors. These jobs are extremely competitive, and you tend to get good lawyers out of top-tier law firms. Many of these prosecutors are older. They have worked elsewhere. They have perspective.
There are little things. It is returning phone calls and emails promptly. It is coming to court on time so that defense attorneys can settle their business before the judge takes the bench. It is treating defense attorneys as colleagues, not supplicants. It is dealing with defendants as individuals, affording them kindness and respect in the courtroom.
There are also big things. I had a case recently in which we had sought a plea deal, including jail-time, that would have allowed my client to avoid registering as a sex offender. I had gone back and forth with the AUSA and her supervisor a number of times without success. And then suddenly the case was gone, dismissed without explanation by the government.
There may have been something fundamentally wrong with the government’s case, possibly new evidence in the government’s possession that would have exculpated my client. Faced with such new information, many of the county prosecutors I dealt with in other jurisdictions would have simply accepted our offer of jail-time. Not this prosecutor. She dismissed the case instead. It was not a win or a loss. It was just the right thing to do.
“When Beggars Die, There Are No Comets Seen”
October 17, 2016
My wife believes in helping out those who are less fortunate.
I believe that if everyone would stop giving money to the panhandlers who frequent every major traffic intersection in Baltimore, the panhandlers would be gone within a week.
If I were to ever run for office, I would have two planks on my platform. The first would be for more public restrooms. (We older men have our needs.) The second would be to rid the city of this blight.
Some of the traffic light panhandlers are aggressive. One guy working the intersection of North and Mt. Royal pounds on the driver side window and demands money. On the other end of the spectrum is the friendly panhandler at Martin Luther King and Route 40. She smiles and waves and thanks you even when you decline to oblige.
I am with my wife one time when I see the smiley panhandler squatting down by the traffic island. I look closer to find that she is refreshing her makeup. Look, I tell my wife sitting in the passenger seat beside me. But my wife is on the phone. By the time I get her attention, the woman has put her makeup kit away and has resumed her cheery circuit between the cars. My wife laughs at me. She is amused by my churlishness.
And, of course, there are the panhandlers with a sense of humor. “Bet you can’t hit me with a quarter,” is the challenge on the sign of one wag. “Give me a dollar or I will vote for Trump” says another. And my favorite: “Spent all my money on cardboard and marker.” Or its variation: “My wife done up and left me. She took everything but this sign.”
It is not that I will never help out a fellow citizen in need. There is an older man who plays a guitar outside the Chipotle on Charles Street. There are three strings on his guitar and his singing is awful. But he is not obstructing traffic or imposing himself on us. At least he is trying. I give him extra, as if it compensate for my miserliness with respect to everyone else.
Finally, there is the young man I see every morning on my drive to D.C. trudging up Martin Luther King in the opposite direction. I could set my clock by his whereabouts in relation to his destination. If he is already at his post — the intersection with Lafayette – I know that I am running late. I have my workplace, my work ethic and my routine. So apparently does he.
Body Worn Cameras in D.C.: Watching Events Through the Eyes of Police
September 15, 2016
On the morning of trial, I stick my head into the small room outside the courtroom where the police officers are assembled. I have spent hours watching and indexing footage from the body worn cameras three of the officers activated on the night of the arrest. So I feel as if I know each officer very well. Officer Palmieri is leaning against the wall to my left. He is clearly the jokester of the bunch. Sitting across from him is Officer Jones. He is a straight-laced, “just the facts ma’am,” type of officer. All four officers look at me blankly. To them I am a complete stranger.
I have been dealing with body worn cameras in D.C. for long enough now to have formed an opinion as to whether, on balance, they are good or bad for the defense. There are times, of course, when the footage can be fatal. It is hard to fight an assault on a police officer charge, for example, when the defendant can be seen charging the officer and hitting him in the face with closed fists. The footage can also be inflammatory. The dispassionate testimony of a police officer on the stand is one thing. Actually witnessing an altercation – raw and violent — is something else entirely.
At the same time, the footage often works to the advantage of the defense. Police officers have a habit of remembering only the facts that further the government’s case. This is convenient for the prosecutor, but more difficult to do when there is objective evidence of the opposite. You don’t recall this? Well, let’s have a look, shall we? Focusing on major facts (for example, who attacked whom), officers are also light on details. They are busy with lots of cases, and they may not take the time to think through the logic of everything they testify to. This creates a potential opening for the defense.
I had a case recently in which my client was accused of attacking her sister with a knife in each hand. Although officers arrived after the actual altercation, the cameras recorded the officers’ interviews of the parties and their survey of the apartment during the investigation. The footage captured details – for example, where the two knives were eventually found — that supported my client’s version of events.
The news is full of bad cops, and I worked with a number of officers in Philadelphia who turned out to be completely corrupt. Access to footage from the body worn cameras, however, has given me a greater appreciation for the likes of Officers Palmieri and Jones. Yes, they are a bit disorganized, and they do have a tendency to shade the truth when they get on the witness stand. At the same time, seeing the world as they do from the moment they arrive at a crime scene, you gain a greater appreciation for the dangers they face. You also realize that, for the most part, they are well-meaning people who handle the often unruly citizens of this city with dignity and respect.
“The Type of Guy That Gives Lawyers a Bad Name”
September 3, 2016
Q: When did you have that conversation then with David?
A: Prior to him ending up in the hospital.
Q: Do you recall the date, approximately?
A: No, I do not recall an approximate date.
Q: Not even a year?
A: What? Are you that stupid? 2013.
Q: You didn’t have a conversation with him in 2012 about selling it to Garcia?
A: I just gave you the whole answer, that this conversation wasn’t a one-day deal. This is a conversation that went on for years.
Q: I understand, sir. That’s why I’m asking. When was the beginning of the conversation?
A: You keep rephrasing the same frigging question. You’re the type of guy that gives lawyers bad names. You’re a piece of shit as far as I can figure. You’re really pissing me off.
Q: Again, you don’t know the year when you first had this conversation?
A: No.
[Courtesy of Dan Daly]
