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.
January 26, 2016
At the time I quit my job as a public defender in Philadelphia after a three-year stint there, I was pretty burned out. I was also jaded when it came to the people we represented. Many of the people had serious mental health and addiction problems. More importantly, many of them also hated us. This was difficult to take, particularly when combined with the crushing caseload we had at the public defender’s office. Looking back on it now with some perspective, I can’t believe I ever had to represent 20-30 misdemeanor clients in a day, particularly when I was meeting most of them on the day of trial. It was only slightly better for clients charged with felonies: Preparation time and an opportunity to meet the clients the week before their trials were scheduled. And our caseload usually ran about seven or eight clients a day during trial week.
It was thus with some trepidation that I joined the court-appointed panel in D.C. I was expecting much of the same animosity. I was wrong. So far, all of my clients have been polite and respectful. They have come to court on time. They have listened to my recommendations, if not always taking my advice. The only real differences between these client and my retained clients are that: (1) the court-appointed clients are much more blasé about the charges facing them, particularly when it comes to the possibility of jail-time, and (2) the retained clients are much easier to reach. I have had retained clients who have called me every day during the life of the case. For obvious reasons, cell phone plans for court-appointed clients are often allowed to lapse.
It is not that indigent defendants are nicer, more respectful people in D.C. It is that the entire court system is vastly superior. The reason people in Philadelphia are so cranky, so disagreeable, so distrustful is that they know they are being screwed.
With some important exceptions, the judges in Philadelphia often took the bench late and then hurried through the docket. Many of them were disrespectful of our clients and the people who represented them. I remember one judge in particular who could never bring herself to actually address us by name. It was “Mr. PD” this and “Ms. PD” that, always uttered with disdain. The message this sent to our clients about the quality of their legal representation was unmistakable.
Even some of the better judges gave us a hard time about delaying the court’s proceedings. They did not seem to appreciate the pressures we were operating under. We did not get plea offers until the morning of trial in the misdemeanor room, and things got worse if the prosecutor arrived late or was preoccupied with other things. This meant we had just a few moments to convey these offers to scared and confused people, many of whom were uneducated and unsophisticated, all the while we were being approached by other people who wanted to talk about their case. And the judges complained to us if any of this delayed things.
Court personnel were even worse. “Fat Danny” played spider solitaire on his computer no matter what else was going on in the courtroom. When it was discovered that he was scheduling hearings for days in which he would not be in the room, we all assumed that he would finally be fired. He was sitting at this desk when we arrived back in court on Monday. He is probably still there. Bobby from Room 803 would ignore lawyers trying to get his attention so that he could chat about the Eagles with the stenographer. Effi and April from domestic violence would make you pay if you did not make pleasantries with them first. The message was clear: In many cases, it was petty, mean-spirited clerks, not the judges, who ran the courtrooms.
As for probation officers, it was not that they did not return your phone calls. It was that, because their voice mails were always full, you could not leave a message to begin with.
Many of the prosecutors were young people right out of law school who were intent on making a reputation securing misdemeanor convictions. Standing next to one particularly ambitious assistant district at preliminary hearings so that I could look over her shoulder at her file, I was able to catch her many times making misrepresentations to the court.
It is very different in D.C. Mani Golzari is a former colleague who is now a supervisor at the D.C. Public Defender Service (PDS). We came down to D.C. around the same time and we used to love to compare our respective experiences. The difference was remarkable. It is not only that judges here take the bench on time, are patient and respectful of our clients, and know and apply the law; that probation officers seem to genuinely care about our clients; and that court staff are professional, efficient and respectful of everyone in the room. It is also that higher quality legal assistance leads to more satisfied clients. Without the acrimony and suspicion, these clients who are much easier to deal with. More importantly, you get better results on their behalf.
This is a simple question of the level of resources devoted to indigent criminal defense in the two jurisdictions.
The public defender’s office in Philadelphia uses a “horizontal” system of representation. One lawyer represents the defendant at the preliminary hearing, another represents them at arraignment, and two or three different lawyers might be assigned to their cases during trial depending on how many times the case is continued. Each time the client has a court appearance in a felony case, a different lawyer will show up at the jail to interview him or her. Who are you, the client wants to know. And what happened to the last lawyer who represented me?
To use a basketball analogy, it is a zone defense as opposed to man-to-man.
It is not that the Philly defender believes that a horizontal system achieves better results on behalf of the client than a system in which the same lawyer represents the client throughout the life of the case – “vertical representation”. It is that with the woefully inadequate resources that are devoted to indigent defense in Philadelphia, the defender has no alternative. It is too inefficient to have different lawyers going to multiple court rooms to handle all their cases. Instead, one or two public defenders assigned to a particular room handle all of the cases that come through.
As a result, apart from the problems you have with confused clients who are often meeting the lawyer who will be representing them on the same day as trial, you get different inefficiencies. I used to re-assure angry clients that it is good to have multiple lawyers looking at the same case. One might see something that another has missed. But who was I kidding?
It is, after all, incredibly inefficient to lots of different public defenders preparing for cases that are often continued. This meant that the public defender who had the case continued would have to write up his/her notes so that another public defender could begin his/her preparations. And, of course, a system is only as good as the people who administer it. I sometimes felt that I spent as much time tracking down lost files or re-creating them from scratch as I did actually preparing cases for trial.
I have crowed here many times about what a class organization PDS is. It is true: In the seven years I have practiced in the District, I have never encountered a public defender I did not think was first-rate. But it is not only the higher quality of lawyers PDS is able to attract (they never would have hired someone like me straight out of law school). It is also that the District devotes the resources that PDS needs. Using a system of vertical representation, public defenders here have the time and support they need to prepare for their cases. So do court-appointed lawyers. And this leads to happier clients who can expect better results.
January 23, 2016
When I started my practice in 2009, I asked an old-timer – somebody who had been practicing in D.C. for over 25 years – how to introduce character evidence in D.C. I have no idea, he replied. Because I have never done it.
Many indigent criminal defendants have long criminal histories. It is much easier to get into trouble with the law, for example, when you are homeless and scrounging for food. Still, not all poor people have been in trouble with the law, and I was surprised by the lawyer’s response. Because a defendant can be acquitted on the basis of good character alone, failing to use this tool when it is available to you sounds a lot like malpractice/ineffective assistance of counsel.
Many of the rules on character evidence turn our traditional assumptions about the law upside-down. Normally, you are not allowed to introduce such evidence. It is not that the evidence is not relevant. It is that circumstantial evidence pertaining to a person’s personality as an indication as to how the person may have acted on the day in question is that it might be too relevant and too persuasive, thereby leading the finder-of-fact to base a determination on that evidence alone.
One of the exceptions is for the accused in a criminal trial. Based in large part on the so-called “mercy rule,” which reflects a desire to counterbalance the imbalance of power faced by an individual who finds him- or herself confronted by the enormous power of the state against him or her, the exception allows the defendant to introduce a character evidence to show that he or she acted in accordance with that trait on the day in question.
There are also other anomalous results when character comes into play. Not only is a witness who is called to testify on behalf of the defendant’s reputation for good character allowed to provide hearsay testimony (traditionally a big “no-no” in any trial), the witness is in fact precluded from anything but hearsay testimony. Finally, the introduction of character evidence is one of the only situations in which the rules of evidence permit conclusions from a witness on a subject in which he is not an expert.
Of course you have to careful. Once you have introduced such character evidence, you have opened the door for the government to bring in all sorts of bad things about your client.
If I was surprised by the old-timer’s response to my question on the protocol for introducing character evidence in D.C., I was also surprised by the government’s response when I introduced this evidence during a recent trial. The Assistant U.S. Attorney was fairly new, with a more seasoned prosecutor there at the table, and she seemed thrown off when I launched into the colloquy with my character witness. In fact, I heard her supervisor whisper to her that my entire line of questioning was objectionable. She waited until my client finished. Then she moved to strike the entire testimony. It is improper bolstering, she told the court.
I was also taken aback by the judge’s reaction. “Counsel?” she said, looking over at me. Had I messed up the protocol?
“It is proper character evidence,” I responded.
The judge shrugged. “Overruled,” she said.
More like this:
January 10, 2016
Ken Womble of Fault Lines won the Simple Justice award for blog entry of 2015 and that is fitting. Scott Greenfield has been complaining about the lack of vibrancy in the criminal blogsphere and Womble is a refreshing new voice. Let’s hope he, Andrew Fleishman, and others at Fault Lines can keep it up.
Greenfield is certainly right that the criminal blogosphere isn’t what it used to be. There are a few people still slogging away – most notably Greenfield, Jeff Gamso, and Matt Brown, all of whom also contribute to Fault Lines – but, let’s face it, it is not the same. One of the greatest losses for me was when Paul Kennedy of The Defense Rests announced that he would no longer be blogging. Other people have simply faded away.
The one bright spot in the blogosphere is the emergence of Fault Lines at Mimesis Law. I often say that you can explain everything in life through a Seinfeld episode, and in fact, Fault Lines draws its strength from a talented ensemble cast offering a range of different perspectives. Jerry Seinfeld is the star of the show — in my analogy, Greenfield would play this role — but the show would not have been nearly as good without also including George Costanza, Elaine Benes, and Cosmo Kramer.
Larry David recreated the George Costanza character in Curb Your Enthusiasm, this time playing the character himself, and although I enjoyed the show while it was on the air, his curmudgeonly loser could get a little tiresome. The beauty of Seinfeld – as with Fault Lines – is you get a lot of people in small doses. You don’t overdo it with any one character or voice. Of course I am not comparing Ken Womble to George Costanza. No, I think he is more like Newman.
November 18, 2015
The good news is that the government has a ton of these cases that it needs to prosecute. This means that it will probably offer most first-time offenders some type of diversion program in which they can do community service in exchange for getting the charges against them dismissed. It also means that, if the case ends up going to trial, it is very likely that the first time the prosecutor will look at the paperwork, interview the government’s witnesses and actually focus on the file will be on the morning of trial. In other words, the government may have the advantage when it comes to the resources it can throw at a case. But the defense will have the advantage when it comes to actually preparing for the trial. It is the defense who will take the time to know the facts and to be creative.
The prosecutor’s inability to focus on a case until the morning of trial is also the bad news for someone charged with a misdemeanor. Defendants who are not familiar with the criminal justice system tend to have this notion of a prosecutor not only focusing on their case, but also focusing on them as people. “Hmmm,” they imagine the prosecutor thinking as she reviews the file. “This is really a good person. It is hard to believe that he would do something like that. I think I am going to dismiss this case.”
I had a case recently in which my juvenile client was also the government’s witness in a sexual assault case. This resulted in me working directly with the prosecutor as we both sought to look out for the best interests of this little girl. It was a strange experience to be working with someone with whom I had a history of some pretty contentious litigation. It was strange to be on the same side. It was also strange for me to see this different side of the prosecutor’s personality – the caring, supportive, motherly side.
I assume prosecutors go through the same mental gymnastics that defense lawyers do to reassure themselves of the righteousness of their cause. And the difference, of course, in this case was that my client was the victim, not the criminal. In fact, most prosecutor don’t seem to see many of our clients as sympathetic individuals who have needs that should be accommodated. Or is this too simplistic?
Over at Mimesis Law, Andrew Fleishman mentions the particularly unrealistic expectations of DUI clients when it comes to what the prosecutor will offer. I couldn’t agree more. Many people charged with this offense seem to genuinely believe that the prosecutor will dismiss the charges against them just as soon as she reviews the file, sees that the transgression wasn’t all that bad and concludes that, besides, the suspension of the person’s driving privileges would be a tremendous and unwarranted inconvenience for the defendant given, say, his responsibility for driving his children to and from school.
These people have never stood in front of a prosecutor as this type of argument was made: “Well, they shouldn’t have been driving drunk then.” And they do not understand when you are not successful in making it.
November 13, 2015
* * * * *
“Darrell” was my typical client. Like all of my clients, he was my favorite. When this is over, Darrell told me one time, you are going to take me out for dinner. You can bring your wife. We will go to a nice restaurant and we will order some really expensive food.
Fifteen years old when I was appointed to represent him for the first time, Darrell sat in a metro car and grabbed someone’s cell phone, jumping out right before the doors closed. There are lots of cameras at metro stations. Darrell liked to wear colorful, distinctive clothing. Darrell’s sister had no hesitation about showing police to the pile of laundry in the back room where they could find his clothes. Police also tracked the GPS coordinates from the cell phone to Darrell’s school, to his home, and to the recreation center where he liked to hang out.
The government offered to dismiss the felony charge of robbery in exchange for Darrell’s plea to two misdemeanors: simple assault and theft II. We took the deal.
* * * * *
Working with adult defendants as a public defender in Philadelphia, I quickly learned not to tip my hand to clients when I wanted them to plead guilty. It often seemed that these clients, many of whom were struggling with mental health and addiction issues and almost all of whom distrusted their court-appointed lawyer, would do the opposite of what they thought I wanted them to do. It was like that Seinfeld episode: George Costanza finds success by doing the exact opposite of what his instincts tell him to do.
You are working for the DA, they would say to me. Or: You just want me to take the deal because it is less work for you.
So I would begin my meetings with them with some bravado. This is how we are going to beat the case, I would tell them. Only later would I mention – almost as an afterthought — that there was also a deal on the table. I would then start talking about the trial strategy again, but the deal tended to linger in their minds. And what if I take the deal, they might say? Oh, I would respond. Then you would be released from custody today and would begin a period of probation. But let’s get back to trial strategy . . .
* * * * *
Reverse psychology is not necessary with the kids. In fact, the problem with the juveniles is that they are usually too ready to take whatever the government offers them. For one thing, they lack the sophistication to understand the government’s burden of proof: It doesn’t matter if you did this or not, the government is still going to have problems proving it. For another, their parents – often the same people who would balk if they were the defendant and a deal were offered to them — are often too eager have their children plead. I am sick of coming to court, they tell me. We need to plead guilty and put this behind us.
It is a tremendous responsibility to have one of these children look at you with these big eyes: I’ll roll with you, Mr. Koehler. I’ll do whatever you tell me to do.
* * * * *
Darrell’s mother is mad at the court. You are making me out to be such a bad mother, she says.
Darrell’s voice wavers: Mom, he says. Stop. You are embarrassing me.
His mother has a long rap sheet. Also an addiction. It is always the parents, his probation officer says. The parents are always the real problem here.
* * * * *
Darrell got straight A’s in school and said he wanted to go to college. All the teachers raved about him. His only fault was that he did not do his homework. It wasn’t until I visited him at his home that I finally understood why.
My investigator Wayne forbids me from going into certain neighborhoods on my own. But in this case, all I needed was Darrell and his mother to sign a piece of paper. I figured it would be a surgical incursion into the neighborhood – a quick in and out. What I didn’t realize until I arrived at the cluster of low-rise apartments was that there were no house numbers on any of the buildings. I was going to have trouble locating his unit. The young men hanging out on an abandoned couch on a grassy quad were not particularly friendly – or helpful. And it got worse when I finally found Darrell’s apartment. The place was crowded with other men, apparently friends of Darrell’s mother. A court-ordered curfew requiring Darrell to be back in this dark, cramped, and run-down apartment by 6:00 pm every day wasn’t going to do him a lot of good. And where in this unit was Darrell going to do his homework? He didn’t have his own bedroom. There was no cozy little nook for him to curl up with a book.
* * * * *
You have closure when the charges against your client are dismissed by the government or when you take the case to trial and your client is acquitted. You and your client can thank each other. You wish each other luck.
It is different when the client is put on probation. No news is good news: it means that your client is complying with the terms of probation. Then one day, without event, the probation is over and the juvenile is no longer your client. In fact, if he or she picks up a new case, the juvenile will be assigned a different lawyer. You never say goodbye.
Darrell’s cell phone number no longer works and when I check with his probation officer, she tells me that she has lost touch with him and his mother. It is good that I don’t run into him at the courthouse. That would mean he picked up a new case.
Someday I will run into Darrell downtown and he will call out to me on the street. His hair will be shorter and there will be openness to him; no more brooding or posturing. He will tell me he has finished high school and is working at a steady job until he can go to college. I will make good on my offer to take him and his mother out for dinner. With my wife. At a restaurant of his choosing. Preferably one that is very expensive.
More like this:
November 12, 2015
THE WITNESS: Okay.
THE COURT: This is a trial in an American courtroom.
THE WITNESS: Okay.
THE COURT: And you have sworn to tell the truth and can go to prison if you don’t, okay? So within the last 30 seconds, you have told me two very different things. You have told me that she shoved him in the chest and that –
THE WITNESS: Okay, none of the –
THE COURT: Hold on, I’m speaking. You twice showed me with your hands pushing forward in a shoving motion that that’s what she had done. Now, you’re telling me that it may not be that she did that at all but something different, right?
THE WITNESS: Okay, I am not –
THE COURT: I instruct you to tell us in this trial the truth and what it is that you remember. Don’t tell us things that you don’t remember. Okay? You got it?
THE WITNESS: (No audible response.)
THE COURT: What’s the trouble?
THE WITNESS: The trouble’s the way that you’re addressing me.
THE COURT: Sir, I am instructing you that you’re under oath and you are to tell us what you remember, and that is my instruction to you. I now ask you to tell us did she push the officer with her hands on his body as you demonstrated?
THE WITNESS: Whether it was like this or whether I remember it being like that, I don’t know.
THE COURT: But she struck him?
THE WITNESS: Whether she struck him or moved like that, I don’t know.