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]

“The First Thing We Do, Let’s Kill All the Lawyers”

July 20, 2016

No Diving from bridgeBack in my days with the federal government, before I had my own J.D., I hated working with the lawyers. It was not just that they spoke a strange language and treated each other as if they were all members of an exclusive club. It was also that they seemed to come up with a million reasons to block everything we wanted to accomplish. You are not the client, they would tell me when I complained. The agency is our client, they said, and it is our job is to protect it from potential legal liability.

I understood the notion of checks and balances. I also understood that there were potential legal implications to every decision we made that went beyond my limited understanding of things. At the same time, the legal advice I received often coincided nicely with what I knew to be the lawyer’s own personal policy preferences. I also suspected that the lawyers often used these tactics as a way of justifying their own existence. Where would the agency be without this selfless group of protectors of the “Agency’s interests” raising groundless issues so that they could then resolve them?

(Unlike my office, the lawyers had a very limited travel budget. One time one of the lawyers I tangled with asked me to pay for his trip to an international conference. He said it would further the interests of my office. I suggested he get the “Agency” to pay for his trip. “Agency,” he responded? What do you mean “Agency?” There is no such thing as an “Agency travel budget.” My gleeful response: Exactly.)

I was thinking of the self-serving and self-justifying nature of the legal profession recently while attempting to secure a document from the police department at a local university. We were referred to the legal department of the university who informed us that, although they had a copy of the document, we would need to subpoena it first. Fair enough. We did so. Not once. Not twice. But three times, each time perfecting some supposed flaw in the subpoena. The university notified us each time of the problem with the subpoena through certified mail, with the letter sent three weeks after the subpoena had been served. Obviously, this delayed everything considerably.

The second attorney I dealt with – an “attorney fellow” with the legal department who is a couple of years out of law school – was far more pleasant than the first. She even had a sense of humor about it. But she said her hands were tied when I complained about the absurdity of it all: All we are doing is creating more useless work for us all, taking away our ability to do more productive things. Yes, yes, she laughed. But this was organizational policy designed to protect the interests of the university.

My father-in-law has told the story of how, while working as a U.S. military advisor to the Danish government back in the 1960s, he could not understand the justification for the posting of a sentry at a particular spot on one of the Danish bases. None of his Danish colleagues could provide him with an explanation. Upon further investigation, he found that there used to be a hitching rail for the horses at that location and that a sentry was necessary to guard them. Of course the Danish military had not kept horses there for decades.

Unlike the days in which I tangled with the government lawyers, I am a lawyer now. I speak the special language and I know the secret handshake. I know from my wife – the best lawyer I have ever met — that you have to keep your eye on the ball. Legal process should be used not for job creation or self-justification but to accomplish specific things. And, as in the case of my father-in-law’s story about the military post, sometimes these rules and policies need to be revisited to make sure they are still serving their intended purpose.

Build It And They Will Come

June 1, 2016

Guest Entry by Mary Anne Brush

Mindfulness. It’s become quite the buzzword, but what does it mean?  Jon Kabat-Zinn, teacher of mindfulness meditation and founder of the Mindfulness-Based Stress Reduction Program at the University of Massachusetts Medical Center, defines it as paying attention on purpose. It’s an effort to be ever-present with an experience in the moment.

When it comes to mindfulness in my own life, it’s my father who comes to mind as the defining influence. While as a poet and English professor he would have hated the word — he demanded precision in language and preferred verbs to nouns — he lived it to the fullest. He took joy in every task he undertook, whether he was planting a bush, carving a pumpkin or building a fire. He never viewed any chore, no matter how mundane, as a bother. It was all about the process, which may explain why he was still carving pumpkins at Halloween and running the sprinkler at the dead of night on our side lawn to create a skating rink even when his five children were grown and gone from the house.

He took his time with things, like selecting gifts. Sometimes he would visit a store two or three times to ruminate over a purchase. It drove my mother crazy. The year we spent in Germany while my father was an exchange professor at Freiburg University, it took him four months to decide on a car to buy. While my brother and I navigated the public transportation system to and from school every day, our father visited car dealers. His German was limited to auto-oriented vocabulary and the topic of cars dominated our dinnertime conversations.

All my life, I assumed my father had difficulty making decisions. Looking back on those four months he spent deciding which car to buy — he landed on a BMW — I realize now it wasn’t because he couldn’t decide. It was because he didn’t want to decide. Shopping for cars was a great joy in his life, so why rush the process? He was the least materialistic person I’ve ever known, but cars were his one bright and shiny indulgence. In fact, he visited our local Chevrolet dealership so often the owner paid his respects at the funeral home when he died. Yet in his lifetime, my father purchased only a handful of cars. So why shouldn’t he savor the pleasure each and every time?

He had no difficulty making up his mind when it counted. He was 35 when he met my mother, but he knew instantly she was the woman of his dreams; they were married within a year.

“Build it and they will come,” my brother said at our parents’ 40th wedding anniversary. He was referring to my father’s insistence, even past the age it was medically wise, on building a skating rink on our lawn, shoveling the frozen surface after each snowfall and setting the sprinkler to run at night when the temperature fell below freezing. My mother would lie awake wondering if she should check on him, worrying he had slipped and fallen and would freeze to death.

We believed at the time he was trying to recapture the magical rink of our childhood, with the ice-encrusted tree trunks lit by floodlights sparkling like crystals, our laughter clouding the air and our skates scraping the bumpy, imperfect surface. We thought it was an act of nostalgia. Looking back, I wonder if he was recapturing the magic not for us, but for himself, the way he would enjoy the order of his vegetable garden, or the crackle of the fire he built or the fresh scent of a well-cut lawn — mindful as ever of the wonder of the moment.

Reprinted from Grosse Pointe News

What It Means To Be Heard

May 27, 2016

The complainant is having a melt-down in the hallway. It is not my case so I have no idea what is going on. All I see are two young prosecutors trying to calm her down. The more they talk, the angrier she gets. The situation seems to be getting out of control when a U.S. Marshall arrives.

He is an older gentleman, a supervisor, for the U.S. Marshall Service. He strolls over. He sits down with her. And he listens. She calms down immediately.

Sometimes all we want is to be heard.

The same dynamic applies to plea bargaining. It is not only that there is 100% chance of being found guilty if you accept the offer. It is also that you never have a chance to tell your side of the story.

I learned early on at the public defender’s office in Philadelphia not to get invested in a guilty plea, no matter how favorable I thought it might be. During a review of the client’s prior criminal history, the client never seemed to regret a conviction after trial. Yes, the client would say, I did my time for that. Instead, what did seem to bother the client were the charges he or she pled to. My lawyer talked me into taking that deal, the client would say. We should have gone to trial.

Our duty as lawyers is to give the best possible advice to clients. As Rule 2.1 of the D.C Rules of Professional Conduct puts it, we are obliged to “exercise independent judgment” and to “render candid advice,” no matter how “unpalatable” that advice may be. At the same time, there is a real value to the client in having his/her constitutionally mandated day in court, even if the case ultimately results in a conviction.

I was chatting about this with a colleague yesterday, and she told me she has had similar experiences to mine. I still remember the expression on the face of a client after a trial in Philadelphia. We had turned down an offer of probation and he was ultimately convicted and sentenced to almost 2 years. Who knows how he felt about his decision the next morning? Or the many mornings that would follow. For that moment anyway, as he thanked the judge and was led out of the court in handcuffs, he had the same look as the woman who was calmed down by the U.S. Marshall. It was the look of someone who has been heard.