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.
September 3, 2016
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]
July 20, 2016
Back 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.
June 1, 2016
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
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.
May 3, 2016
I should have seen the three young people – two males and a female – standing on the corner in the dark waiting for me. But I am lost in my thoughts, and they are upon me before I can do anything. Damn, I think. I can’t believe this is happening.
Wayne my investigator has told me I should carry a single $20 bill in my pocket. You hand this to them, he explained, and send them on their way. I am already regretting that I did not take his advice.
I stay on the ground. They calm down as soon as it becomes apparent that I am not going to put up a struggle. It is like putting your hands in plain sight on the steering wheel when pulled over by the police. The adrenaline is already leaving our bodies. The dog uses this opportunity to sniff around.
I have represented so many juveniles in crimes exactly like this one that I feel as if I know these kids. Tough talk. A burst of violence. And some swagger. Deep down, however, most of them are really sweet, vulnerable children.
The tall one, the one who hit me, leans in over me. Give it up, bitch, he says. Resigned, I take out my wallet and open it up, showing him that I am handing him all the cash. I don’t want to replace the credit cards. I don’t want to spend another day at the DMV. He pockets the cash and starts to leave. Then the other male steps up. And the phone, he says.
I collect myself as soon as they run off. A neighbor walking his dog comes over to make sure I am okay. There is swelling on my face, and my body will be sore for a couple of days. But the only real damage is to my dignity.
Back at the house, using my wife’s phone to call 911, I pick my words carefully. How many times have I replayed one of these calls as a criminal defense attorney looking for any hesitation, any inconsistencies, any weaknesses in the government’s case?
My neighbors are upset when they learn that neither I nor the police used the GPS on my I-Phone to track my assailants’ movements while they were still in the neighborhood. At the same time, I know this case will never go to trial. If I have ever questioned the accuracy of eyewitness identifications from a professional standpoint, I now know it from first-hand experience. There is no way I could ever identify any of the young people who assaulted me. The police officers who interview me seem to understand this. Cross-racial identifications are particularly problematic.
I am walking the dog again the next morning when I run into our neighbor from a couple of doors down. She has read about the assault on the neighborhood listserv. She uses the GPS location on my stolen phone to track its location. It is now moving back and forth at an intersection in Baltimore County about 10 miles away. She also hails down a passing police officer and, when he refuses to do anything about it, contacts our recently re-elected councilman to urge action.
A group of three juveniles with the same gender mix have been involved in all sorts of mischief recently in our neighborhood. So I understand the need for police intervention. We need to protect our home values and our safety. I also admire my neighbor’s faith in the criminal justice system. But I know better. Even if the Baltimore City police were able to coordinate with the Baltimore County police and track down whoever is now in possession of my stolen I-Phone, without an identification from me, the most anyone could ever be charged with is the criminal offense of receiving stolen property. The chances are also pretty good that my phone is now in the hands of a third party.
My neighbor continues to track my I-Phone for the rest of the day. The signal goes silent at around 3:00 pm. She picks up the signal again at around 3:30 and is pleased to see the phone heading down I-83 toward our neighborhood. Aha, she thinks. Now we got you. Then she realizes the person she is now tracking is me.
Having spent a couple of hours at the Apple store in Towson, I am happy to have my new I-phone. I am moving on. If there is one thing I have learned from this experience, it is to listen to Wayne. The next time I walk our dog at night, I will stay in open, well-lit areas. I will keep my wits about that me. That is the cost of living in a city like Baltimore. I will also carry a single $20 bill. I will hand it to them. I will send them on their way.
April 27, 2016
The jury is still deadlocked after three days of deliberations, and the judge declares a mistrial. She releases the jurors. Anyone interested in answering questions from the lawyers, she tells them, should stick around in the jury room.
All 12 jurors are there when the four of us lawyers – two from the government and two from the defense – go back to see them. Apparently they do have something to tell us.
It takes us a moment to transition from the formality of the trial but eventually they begin to open up. We have been studying their expressions from the counsel table for a couple of days now, trying to discern any clues as to their leanings. Suddenly they are an open book, and we find out that we have been right in some cases but wrong in even more. We knew that the older black gentleman was going to be on our side. But we are surprised that the other holdout was a young white female. And, as it turns out, the defense had no support from the middle-aged white female – the medical doctor — we had thought might not be too impressed by the government’s case.
Juries can be difficult to read. Or maybe it is just me that is not very good at it. I think back to a jury trial I did a couple of years ago in a DUI case. The tall white guy is clearly on our side, I told my client. The guy listened intently to all the testimony, particularly during cross-examination, and he kept nodding during my closing argument. In the end, he was the foreman of a jury that convicted my client.
We ask the jurors first for the count. Then we turn to the specifics.
Three of us lawyers are relaxed. We are interested in hearing what the jurors have to tell us. The case is likely to be retried. We also want to improve as trial lawyers. But the lead prosecutor is still arguing his case. He quibbles with the jurors when they do not agree with him on the significance of certain facts. My colleague and I joked after his closing argument that we should have bet on how many times he would point at our client.
Afterward, as we all file down the hallway behind the courtroom to the exit, I walk next to a young black woman who had been a question mark for the defense. Completely impassive during the trial, she is now animated. The two government lawyers lean in, just in case I am about to glean a final gem of insight. I thought it was funny, she tells me, that your client seemed to sleep through much of the trial.
I smile and wave this off as we walk out into the court hallway and go our separate ways. It doesn’t matter that she is mistaken. What she thinks is no longer important.
March 8, 2016
Recently appointed as a provisional member of the panel to represent indigent criminal defendants in D.C., I need to second-chair two jury trials before I can be considered for inclusion on the full panel. So I go to the lawyers I most respect to offer my services. I want to punch the ticket. I also hope to learn something.
Noah Clements brings me in on a felony PCP case. This is the ideal situation for me. Clements is a friend and colleague, someone with whom I often exchange trial strategies and tips. Clements is humble in a way every lawyer should be: He knows that there is always so much more to learn. He is also the person who teaches the D.C. Superior Court training course on challenging expert testimony in a drug test. In this particular case, the court has already held three evidentiary hearings on his demands for additional discovery. The government has been fighting him every step of the way.
Tall and white-haired, Clements looks like a lawyer. He is also very good with the client. He is patient and relaxed. He explains himself without being condescending and, although he is firm when he needs to be, he listens to the client. He clearly understands his role as agent and advocate.
That said, it is still an awkward situation. I think back to my days as a middle-aged intern at the public defender’s office in Philadelphia. Whenever I joined an inevitably younger-looking PD in the ante-room outside the courtroom to convey an offer to a client, the client would often look to me – the distinguished older looking man – for advice. “Go with what your lawyer is recommending,” I would say, trying to shift the attention back to my colleague. “He knows what he is doing.”
This is not a problem with Clements. And the client is fine with me joining the legal team. Still, it is difficult to sit at the counsel table during the suppression hearing without an ability to affect the outcome. My intern days are over. I have gotten used to being in charge.
The client passes numerous notes to Clements during the officer’s testimony, and I don’t want to serve as a further distraction. Besides, Clements has things well in hand. The judge takes a recess to consider a couple of points of law, and, although it is a close call, he ultimately rules against us.
The suppression motion lost, our client agrees to a stipulated trial and is found guilty without a jury trial. Clements is sorry I will not get to punch my ticket this go-round, and he promises to bring me in on his next jury trial. Clements is a gentleman. I will hold him to that commitment.
March 5, 2016
Criminal defense attorneys often use flat fees; that is, we charge a set sum to cover the entire course of a representation. This includes arraignment, negotiations with the prosecutor, any legal research that needs to be conducted, preliminary hearings and status hearings, trial, and, if necessary, sentencing. As Mark Bennett has put it, the flat fee is at once the minimum fee for a representation as well as the maximum: “If we go to court the first time and, for whatever reason, the case is dismissed, I don’t owe you any money back. On the other hand, if we spend a year litigating and then wind up in a two-week trial, you don’t owe me any more money.”
The flat fee arrangement, from my standpoint, is a win-win for both parties. From the lawyer’s perspective, you have the satisfaction while working on a case that you are being diligent on behalf of the client, not simply running up the tab. You do not need to track your time. You do not need to second-guess yourself on whether or not particular work will be a good use of the client’s money. Financial considerations do not skew other important decisions, such as whether or not to take a particular case to trial. The client is protected if the case turns out to be long and complicated. And if the case is disposed of quickly (the first goal in any criminal case), you both benefit – the client because the case is over and you because, having earned your fee on this case, you are free to close out the file and move onto other work.
I charge what I believe is a fair flat fee. After 7 years of private practice, I have a pretty good idea what work will be involved with any particular case. This protects me. It also makes sure that I am not overcharging a client. If it is a first-time offender in a misdemeanor case, for example, the client is likely to be offered some type of diversion program. I occasionally negotiate my fee down a little bit, depending on the client’s circumstances and the facts of the case, but I agree with those who warn that the clients who focus too much on the fee often turn out to be problematic.
I have also had people offer to pay me more so that I will work extra hard. The outcome is really important to me, they say, and I don’t want you to spare any expense. I can only laugh when this happens. Thank you, I tell them, but once I enter my appearance in a case, you get the same level of representation no matter how much you have paid me. This would be my ethical and professional responsibility even if you had paid me nothing at all.
January 28, 2016
I tried to argue a while back that, when it comes to D.C.’s statute on Threats to do Bodily Harm, parking enforcement officers should be considered to be particularly immune to threats. After all, they are used to dealing with angry people who have just found a ticket on their windshield. Such officers, I would assume, are also trained both on ways to defuse the situation and on personal coping methods in the face of frequent abuse.
The trial judge did not agree with me, and, in fact, the D.C. Court Appeals seemed to lay out special protection for law enforcement officers in In re S.W., 45 3d 151 (D.C. 2012), which is otherwise a very good opinion. Now there is Milon C. High v. United States, __ A.3d __ (D.C. 2015).
The defendant in High was arrested for unlawful entry. While seated on the curb in handcuffs, High “glared” at the police officer who was asking him questions. He then said to the officer: “take that gun and badge off and I’ll fuck you up.” A few seconds later, he added “something to the effect of, too bad it’s not like the old days where fucking up an officer is a misdemeanor.”
In an opinion written by Senior Judge Vanessa Ruiz, the D.C. Court of Appeals reversed High’s conviction for attempted threats. The court held that “simply because certain words are addressed to a law enforcement officer who is performing official duty does not necessarily mean that the utterance constitutes a criminal threat.” High’s statements “are most aptly described as an expression of exasperation or resignation over the fact that the appellant had just been arrested by police officers for whom his family had ‘bad feelings’ based on prior experience.” The court continued:
Appellant’s first statement – “take that gun and badge off” – is not a direct challenge or a “dare” to Officer Smith; appellant is not taunting the officer, or directly attempting to goad him into hand-to-hand combat. Rather, appellant is communicating that if Smith were not a police officer, then appellant would, in his words, “fuck [him]up.” Similarly, appellant’s second statement – referring with nostalgia to a time past (“too bad it’s not like the old days”) when assaulting a police officer was a misdemeanor – recognizes the increased penalty associated with inflicting physical harm upon a law enforcement officer as yet another reason not to do so. The statements convey both appellant’s anger at being arrested (in his view unjustifiably) as well as his appreciation that he is constrained by the officer’s status and potential criminal penalties from doing anything about it. Read together, appellant’s statement amount to a feisty lament, an “expression of [his] frustration over his arrest, rather than a serious threat of bodily harm” . . .
Nor do appellant’s statements reasonably convey a desire or ability to inflict serious injury in the future. Looking solely to the words spoken, it would be unreasonable for an ordinary hearer “to presume that appellant’s statement carried an implied future threat” that appellant would “hunt down” and visit physical harm on Officer Smith at a later time . . . Nothing in the statements uttered by appellant is a prediction or speaks to the future.