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Simms v. U.S.: On the Pre-Trial Presumption of Prosecutorial Vindictiveness
Was the government’s addition of the new charge an effort to punish Simms for exercising his right to seek additional discovery through compulsory process?
Total Quality Management and the Practice of Criminal Law
Nobody talks about Total Quality Management (TQM) anymore. An outdated fad from the 1980’s, and even then applied mostly within the automobile manufacturing industry, it may have questionable applicability to the practice of criminal law. But still I believe: You think ahead. You show up to meetings early. You return phone calls. You meet deadlines. You don’t make excuses. You …
Probation. Drugs. School. Then Home.
I have a little speech I like to give to my juvenile clients. I tell them that, while I will be looking out for their legal interests as their lawyer, what happens to them pending trial or if found guilty of the offense will depend far more on what they do for themselves. I then hold up four fingers and …
Open Guilty Plea = Bad Case + Fair Judge + Unreasonable Prosecutor
When faced with a really bad case, one option is to work out a favorable plea agreement with the government to try to mitigate consequences for the client. Another frequently overlooked option is to do an open guilty plea. In fact, the Criminal Practice Manual put out by the D.C. Public Defender Service devotes an entire chapter to guilty pleas …
Blawg Review #316: Where Are They Now?
In the Blawg Review I hosted last year, “Images from the Criminal Law Blawgosphere,” I took a look at the photographs bloggers use on their sites. I was intrigued, for example, by how bloggers portray themselves to their readers. Do they go for the formal headshot? A more informal shot in casual clothes? Or do they provide no picture at …
“Check Out The Shoes My Lawyer Is Wearing”
I used to buy my suits at Joseph Banks. When I started to put on weight, I switched to Brooks Brothers. Now I have my suits tailor made through J Peditto Apparel. But, until just a couple of years ago, I never gave a moment of thought to the shoes I wore. Linda Mullen, the woman who used to dress …
Cross Examinations. Directs, too.
“No questions, Your Honor.” What could be more satisfying to say after your opponent has completed his direct examination than those four simple words? It is a challenge, a slap in the face with a folded glove. It is a declaration that the other side hasn’t touched you, hasn’t hurt you at all, with the testimony. It is like Muhammad …
Managing Client Expectations
Indigent criminal defendants often have two simultaneous and potentially irreconcilable opinions of the lawyers who are appointed to represent them. On the one hand, they have absolutely no respect for the public defender or court-appointed lawyer. You aren’t a real lawyer, they say. You are working with the government. It is easier for you if I just plead guilty. And …
Get Out of My Office: A Hypothetical Interview With a Potential Client
A woman and her son come into the office for a consultation. At the end of the hour, the woman turns to me and tells me that they have also met with a number of other criminal defense lawyers. “Why should we hire you?” she wants to know. I have to say, I am somewhat taken aback by the question. …
Wherever We Wish, Hydrangeas Could Be Blooming
The “Family Tree” people from Belchertown have taken down most of the big trees in my parents’ yard. My oldest sister – the one who helps my mother with her finances — hired them to do some trimming. They came back when my sister wasn’t there, again and again, each time getting my mother – always so cheerful, always so …
U.S. Out Of Afghanistan. Now.
We are not going to win. We are not going to stabilize the country. We are not going to win any hearts and minds. The only thing we will accomplish by remaining in this miserable, strife-ridden country is to lose more American lives. At some point, maybe, we had an opportunity of doing something positive in Afghanistan. With the full …
A Peek Behind The Curtain: On Being A Government Witness In A Criminal Prosecution
I am a government witness in a criminal prosecution. The complaining witness is a former client, and I have been called to testify to a conversation I had with the defendant prior to a civil protection order hearing. The government will also use me to introduce parts of the transcript from that hearing. I know the Assistant Attorney General as …
Entrapment in D.C.: The Legality of Recent Decoy Operations
Your client is heading home, minding his own business, when he comes across what appears to be a homeless man sleeping on a bench at the metro station. Sticking out of the man’s coat pocket is a shiny new I-Phone. In a moment of weakness, your client grabs the I-Phone and is immediately taken to the ground by both the …
List for D.C. Juvenile Panel is Out
The list of lawyers approved to take on court appointments for juvenile cases is now out. D.C. Superior Court Chief Judge Lee Satterfield issued the order approving the list on February 27. The appointment is good for four years. The process began last summer when all members of the Panel were asked to re-apply. The Family Court Panel Oversight Committee, …
I Am Not A Traffic Lawyer. Except When I Am.
When I first went out into private practice in 2009, I was tempted to take on traffic cases. After all, my wife and I may not know many habitual criminals, but we do know lots of people who get in trouble with traffic enforcement: parking tickets, speeding, failure to display proper tags, and so on. Suddenly all these people were …
On Sluts, Whores, and Rape in the Military
I found out about the press conference this morning when Susan asked me for feedback on the suit she was wearing. “How come nobody from the media ever talks about the good-looking and supportive husband?” I asked her. Craving attention almost as much as she eschews it, I was annoyed the last go-round when one of the media reports mentioned …
Second Careers: Law School After 40
Forty-three years old when I started my legal career, I loved law school and I love practicing law. The thing about the law is that there is also something new to learn.
Grace. Class. Loyalty to the Client.
“I want a new lawyer.” The defendant and his lawyer have clearly had some type of disagreement, and this is what the defendant, standing at the bar of the court alongside counsel, says to the judge. Who knows what the issue is? Maybe the lawyer wasn’t returning phone calls. In this case, the defendant would be justified in seeking …
On Starting a Law Blog: 10 Handy-Dandy Tips from a B-List Criminal Defense Blogger
A while back, a criminal defense lawyer who was starting his own practice in D.C. called to ask me for advice on starting a blog. Great, I thought. Finally someone who wants to hear what I have to say about blogging! The first thing you need to think about, I told this guy, is what kind of blog you …
Unauthorized Use of a Motor Vehicle: Applying the Notion of a “Grace Period”
The judge doesn’t like my idea of a “grace period.” In fact, he chuckles when I propose it: “I have never seen any case law on that,” he says. I was not trying to be funny. My client has been charged with both unlawful entry and unauthorized use of a stolen car in which he was a passenger. Unlawful …
On the Criminal Defenses of “Justification” and “Excuse”
How can you not love the criminal defenses? With the government burdened with proving every element of an offense beyond a reasonable doubt, one criminal defense strategy is to challenge the identity of the perpetrator. Yes, says the defense lawyer in an alibi defense. I am sure the crime was committed, and wasn’t it a particularly egregious one at …
Withdrawing a Guilty Plea
It is never easy to plead guilty. As the cliché goes, if you plead guilty, there is a 100% chance that you will be found guilty. Nobody likes to stand up in open court and admit to a list of terrible actions recited by the prosecutor. And the greatest expressions of regret I hear from defendants are often based …
That Was The Right Decision, Judge. No Matter What I Said.
One of the first things they told us during the training for court-appointed juvenile cases was that we should never allow ourselves to become co-opted by the system. My first reaction upon hearing this was: What the heck are they talking about? My only previous experience with juvenile cases had been in Philadelphia, and it was not a good …
Ray Koehler on “Fiat Iustitia Ruat Caelum”
Guest Entry By Raymond Koehler My initial enthusiasm at being invited to write a piece for my brother’s law blog quickly turned to concern. I am a Latin teacher, not a lawyer, and although I often find myself citing my brother in defense of my subject before the incoming hordes of freshmen – twenty-seven to a class – I …
The Criminal Defense of “Mere Presence”
Assuming you did nothing to encourage or instigate the activity, there is nothing illegal about being present during the commission of a crime. There is also no duty, upon coming across a crime in progress, to prevent that crime from occurring. This is true even if you are with people who are actually committing the crime. These principles lay the …
“A Military Brat With Daddy Issues”
There are people in this world, it turns out, who don’t like my wife. It is not surprising that, along with the fans, her high-profile public interest and human rights cases have also attracted her share of detractors. When you sue a major U.S. company for illegally dumping its waste in a developing country, people will assume you are anti-big …
Coles v. U.S.: The Right to a “Meaningful Degree” of Cross-Examination
Although the ability to cross-examine a witness is a critical component of the Sixth Amendment right to confront your accusers in a criminal case, this right is not without boundaries: “Once sufficient cross-examination has occurred to satisfy the Sixth Amendment, . . . the trial judge may curtail cross-examination because of concerns of harassment, prejudice, confusion of the issues, …
Complaints, Excuses, and Justifications after a Lost DWI Trial
Before beginning my practice in Virginia, I went over to traffic court in Fairfax County to observe, and was struck by the large number of DWI cases that pled. One piece of blue paper after another was passed up to the judge, with the defendants lining up to accept responsibility for their offense. These guys don’t know how to …
On Ethical Issues Raised by “Letter Lawyers”
Mark Bennett refers to them as “letter lawyers”; they are the lawyers who, with the hopes of securing new clients, send out advertising materials to the people whose names and addresses have been listed on public arrest records. A friend of ours was charged recently with a misdemeanor traffic offense and received over 20 letters in the mail. She …
On Trial Transcripts: Only the Stenographer Knows for Sure
Reviewing the transcript from a hearing or trial you have done can sometimes be a humbling experience. What you may have remembered as a dramatic moment at trial can come across as flat on the printed page, and a good stenographer will throw in every “er,” “um” and “okay” to remind you that you may not be quite the …
No Meetings for Criminal Defense Lawyers
I went to my first meeting yesterday in over 10 years. Believe me, I know my way around a meeting. During my first career in the government, I did nothing but meetings: budget meetings, planning meetings, team meetings, agency meetings, inter-agency meetings. Half of my day was spent planning for meetings. The other half was spent sitting in them. …
Avoid Tit for Tat When Confronting Expert Witnesses
Guest Post by “Hamilton Burger” Every trial lawyer faces that sharp chill in the middle of the night, when your mind refuses to let go of your upcoming trial — and you realize that your opponent has an expert witness who is going to crush your case. You may be a defense lawyer who has to prepare a trial …
Ode to My Investigator
I botched the investigation. I went to the store on Upper Wisconsin Avenue in which my client was alleged to have committed a robbery. While there, I neglected to look for a critical piece of evidence: whether or not there was a surveillance camera over the cash register. As a result, my investigator Wayne Marshall had to go back …
Cross-Examining a Prosecutor
I have been called to testify in a criminal case. A couple of weeks ago I represented a woman seeking a civil protection order against a former boyfriend. With the boyfriend now facing criminal charges for contempt of court, certain admissions he made to me during the course of that representation have become relevant to the criminal proceedings. It …
I’ll Press “Publish”
Many mornings before the start of a trial, I find myself writing a blog entry. This initially struck me as odd. Shouldn’t I be putting final touches on my opening statement and focusing on the issues I expect to arise at trial? Then it occurred to me: In addition to the many other reasons I blog, blogging serves as …
Confrontation Clause Be Damned: D.C. Continues to Use Surrogate Witnesses in DUI Cases
Michael Bruckheim was scheduled to cross-examine Lucas Zarwell, the chief forensic toxicologist in D.C., and a group of DUI lawyers had gathered outside Room 116 yesterday afternoon shortly before 2:00 pm. Zarwell testified before city council last May that urine samples taken by police to test suspected drunk drivers are not reliable enough to accurately measure a person’s blood …
On Recusals: Offending the Judge, Protecting the Client
A couple of years ago, a Court of Common Pleas judge in Philadelphia banned me from her courtroom for life. Both the stenographer and her law clerk looked at me with sympathy when the judge issued the edict. Maybe they thought I would be upset. In fact, running a list in this judge’s courtroom was viewed to be a …
On Zealous Representation and Public Defenders
I will remember this. This is what the prosecutor promises you. In another context, she could be intending this as a threat. As in: I will get you back for this. In this case, she is trying to entice you into making a concession, and she is putting you on notice that she has a long memory. She …
The ABA Journal’s Most-Voted-For Criminal Justice Blog for 2011
Thank you very much to everyone who voted in the 2011 ABA Journal Blawg 100. Included among the list of top 100 blogs overall, the Koehler Law Blog received the highest number of popular votes in the “Criminal Justice” category. As I am a big fan of the other blogs that were included in this category (many of which …
Confronting the Silent Witness — the Breath Test Machine — in a DWI Case
The government vouches for him. He himself doesn’t need to come to court, much less explain the basis for his conclusions. His “testimony,” which is delivered through an interpreter, consists of nothing more than a couple of numbers and some pre-set generic language. There is no opportunity to cross-examine him. And yet the court can send the defendant away …
Dealing with the Parents of a Juvenile Client
My client’s mother is annoyed with me. She disagrees with her 16-year-old son’s decision to take his case to trial, and she is convinced I am the one who talked him into it. She’s partially right; in this particular case, I did recommend trial. But it does not matter if the child is 16 years old or 11 years old, …
A Letter of Apology After a Guilty Verdict
After finding my client guilty of simple assault, the judge orders my client to write a letter of apology to the complaining witness. I can understand an apology after a guilty plea. After all, acknowledgment of remorse could be an important part of the rehabilitation process. What I don’t understand is the need for an apology after the defendant …
Brilliant Trial Lawyer or Simple Ass?
MR. KOEHLER: Objection. Relevance. THE COURT: Mr. Koehler, you can sit down. MR. KOEHLER: Your honor, this is absolutely ridiculous. MR. RIORDAN: No, it’s not. THE WITNESS: No, it’s not. MR. KOEHLER: It is completely irrelevant. THE WITNESS: What’s ridiculous is how [the petitioner] gets away with all this stuff. THE COURT: I really can’t properly judge the relevance …
D.C. Welcomes Jackie Cadman
Mani Golzari told me she was coming to D.C., but I had no idea she was already here until I ran into her yesterday in the basement of Moultrie, heading to her first arraignment. I was not prepared for her hug because, well, I am an uptight kind of guy. Jackie Cadman has arrived. When I introduced Golzari on this …
Being Found Guilty After Pleading Guilty
If you plead guilty, there is a 100% chance that you will be found guilty. Or something like that. I read that on the Internet a few weeks ago and, while I can’t remember who said it for attribution, I had the opportunity to use this clever little phrase just the other day. It is what you tell a …
I Hate Latin: Res Ipsa Loquitur
I only took two years of Latin in High School. It was years before I actually admitted this to my children. Because I often cited the Latin origins of a word, they assumed I was this great Latin scholar. It was not until their education in the language began to overtake mine that I had to admit to them …
The 2011 ABA Journal Blawg 100
Last year I wrote about the ABA’s annual list of the top 100 legal blogs – the ABA Journal Blawg 100 – asking readers to vote for their (and my) favorite blogs for 2010. I repeat that request this year with the benefit of being able to ask you to vote for my blog as well. I was very honored …
On Roses, Scam Artists, and Criminal Defense
A number of years ago, while on vacation in Miami, my family and I were sitting in a restaurant when a man approached the table and handed my then 15-year-old daughter a paper rose. Angered by the intrusion, I took the rose from my daughter and tried to hand it back to him. The man refused to take it. …
Terry v. Ohio as a Seinfeld Episode
I have often said that you can explain everything in life through a Seinfeld episode. And while there is no single case that does for criminal law what Seinfeld does for life, Terry v. Ohio comes pretty darn close. It is not that Terry is my favorite case. After all, it expanded the scope of constitutionally permitted searches. But, …
Blame the System, Not The Judge, In The Tyronn Garner Matter
What happens if I release him and he goes out and kills someone? What happens if I release him and he goes out and gets himself killed? You know these questions are going through the judge’s mind every time a defense attorney argues for a client’s release. It is the great unspoken in the court room. It is why …
A Solo Practitioner as Trapeze Artist
Years ago, back when the children were little and we lived in Arlington for the first time, we decided to go to the circus. I drove over to the baseball field in Ballston earlier in the day, and bought the tickets from a young Hungarian woman working out of a trailer. It was a small, family-owned circus with one …
Tardy Prosecutors, Gutsy Judges
Judge Milton Lee of D.C. Superior Court takes the bench at 9:00 am. Promptly. Every morning. Without fail. One of my biggest complaints about the Office of the Attorney General in D.C. is that its prosecutors often waltz into court well after 9:00 am every morning, usually minutes before the judge takes the bench. This can make life difficult …
On Building a Support Network as a Solo Practitioner
One of the things I liked best about the Philadelphia public defender’s office – in addition to the camaraderie and sense of shared mission — was the support you got from other lawyers. If you had a legal question or wanted feedback on a possible trial tactic, you could step out into the court hallway or into the office next …
Why Police Officers Love the “Plain View” Exception
Police officers love the “plain view” exception to the Fourth Amendment requirement for a warrant. It is because this exception is so straightforward and understandable: I didn’t need a warrant because I saw it with my own eyes. I immediately recognized it as contraband. So I grabbed it. All the other exceptions are much more complicated, and the law …
“The One Question Too Many”
My colleague — the lawyer for the co-defendant in one of my cases – is annoyed with me. We each represent a person charged with robbery at a metro stop, and I am cross-examining the police officer at a preliminary hearing. Our theory is mistaken identification, and I am trying to establish how many people were at the station …
Representing People, Not Files
A supervisor at the Philadelphia public defender’s office used to tell us all the time that we were representing people, not files. This really got on our nerves. As one colleague put it: Maybe he needs to be reminded of that fact. After all, he sits in his office all day doing nothing more than reviewing the files we …
On Trial Tactics — Intentional and Otherwise
I am sitting in court waiting for trial to begin. The charge is assault on a police officer. I have just been given a video recording in another case and I decide to use this time to watch it. So I pull out my laptop and stick it in. My viewing of the video seems to raise the attention …
Why I Hate D.C.’s “Threats to do Bodily Harm” Statute
Your client is 19 years old. She weighs 105 pounds and stands under five feet tall. Having been arrested for a minor offense, she sits handcuffed in a room surrounded by police officers. Her eyebrow is bleeding from a cut she suffered from being thrown up against a chain link fence. All the police officers are male. They are …
Jack Lambert and My Investigator
Wayne, my investigator, thinks he is being subtle. He insists on escorting me out of a bad neighborhood whenever we finish a crime scene investigation, and he doesn’t realize I can see him lingering down the street as I climb into my car. But this guy is bigger than his childhood hero, Jack Lambert of the Pittsburgh Steelers, and …
A Public Defender Just Doing His Job
I am watching Mani Golzari of the D.C. Public Defender Service cross-examine a police officer at a probable cause hearing. Of all the cross-examinations I have either done or seen this past week, Golzari’s is undoubtedly the best. Golzari was a rising superstar when we worked together at the public defender’s office in Philadelphia, and he is even better …
On Police Officers and Other Bullies
I am sitting in JM-15 at D.C. Superior Court watching a Georgetown University law student cross-examine a police officer on a drug case. The officer is doing the old “dumb officer” routine; that is, he can’t seem to understand any of the questions, even though it is perfectly clear to everyone else in the courtroom what the student is …
Why I Like Surveillance Cameras
A proposal to install indoor surveillance cameras at Fairfax County schools in Virginia has created quite a controversy. With many parents still upset over harsh disciplinary practices in the schools that have led to a couple of suicides, critics of the proposal have expressed concern over any further encroachment on the civil liberties of students. They see the proposal …
On Prison Tapes: Eavesdropping on Your Client
I am dealing with a “hide-the-ball”-type prosecutor in Virginia. I have gotten spoiled from working with D.C. prosecutors; they are usually pretty upfront about what they have against your client. There are no ambushes or surprises. Your client has better information in deciding whether to plea. Everyone is better off for it. This is not that kind of prosecutor. …
How Criminal Charges Can Jeopardize a Security Clearance
Of all the collateral consequences of a criminal arrest or conviction, one of the issues of greatest concern in the DC/Maryland/Northern Virginia area could be the effect of an arrest or conviction on a person’s security clearance. After all, with many military personnel and defense contractors living in the area, there are many people here who require a security …
Sometimes A Guilty Verdict Is a Win (At Least That Is What I Tell Myself)
Although Virginia juries have a reputation for being unforgiving, I have also been told that juries in Prince William County can be pretty unpredictable. Going into trial yesterday, my client was facing a mandatory 5-year sentence for being a violent felon in possession of a firearm. During execution of a search warrant at his home, police had recovered a …
A Lesser Standard for Proving Culpability in Juvenile Cases
During my first couple of weeks with the Juvenile Division at the Philadelphia Public Defender’s Office, I took what I believed to be a very strong case to trial. My client had been charged with aggravated assault against another young woman. I had a couple of witnesses who testified that my client had actually intervened in order to break …
English v. United States: Aiding and Abetting Flight in a Motor Vehicle
Although you can be found guilty of aiding and abetting flight in a motor vehicle, there was insufficient evidence in this case to sustain the conviction.
A Wedding in Sarzeau
The French have always brought out a certain competitiveness in me. Maybe it’s because I know they view us Americans as crass and cultureless. It was therefore with some pleasure that I read about the discomfort they felt when we elected Barack Obama to office; they realized that, unlike us, they were not yet ready to elect a member of …
Blades v. U.S.: On Cross-Examination and Bias
The right to cross-examine witnesses is one of the defendant’s most important trial rights. And, among the areas for cross-examination, what could be more important than bias? An inability to accurately perceive events could result in an honest mistake. Bias suggests that the witness might be deliberately coloring the testimony. In Blades v. United States, 25 A.3d 39 (D.C. 2011), …
Innocent Possession of a Firearm in D.C.
The innocent or momentary possession of a firearm or any other type of contraband is a valid defense in Washington, D.C.
Explaining the Rakofsky Defamation Suit on an Application
Filling out an application can be a painful process for anyone who has ever been arrested or convicted of a crime. What specifically is being asked? What is an honest response? And how can I put this response in the best possible light so that it doesn’t torpedo my chances of having the application approved? Most applications used to ask …
If You Can’t Afford a Lawyer, Just Pay the Fine
Defense strategy of pro se defendant this morning consisted mostly of making faces during the police officer’s testimony. Note to self: Not real effective. Surprisingly enough, the prosecutor still felt the need for argument.
The Blackwater Fraud Trial: Ode to Plaintiff’s Counsel
The Blackwater fraud trial begins tomorrow. For the next two weeks or so, my wife and her team will be sequestered within a two-block radius of the federal courthouse in Alexandria, Virginia, commuting between their hotel, their temporary office, and the courthouse. It is a David and Goliath confrontation right out of Erin Brokovich or A Civil Action. If you …
On Hoopties and Shell Stations: The Benefits of Visiting a Crime Scene
Yet another benefit to private practice – as opposed to being a public defender – is that you have more time for investigations. Wayne, my investigator, actually handles most of my on-scene investigations. As a former cop, he knows what he is doing. He has a great way with clients and witnesses. He also knows every Shell station, Seven-Eleven, …
Drinking Ouzo at the Hotel Coronis
During a couple of summers while in college, I worked as a bartender at a hotel bar in southern Greece. It was not a big place – just a couple of tables and three or four stools at the bar. Most of our customers were hotel guests who came in for a quick drink before dinner: vacationing Greeks from Athens, …
In Re Gault: “Constitutional Domestication” of the Juvenile Justice System
There are only a small number of criminal cases that all lawyers, even those who don’t practice criminal law, seem to know. Although Miranda v. Arizona is probably the most famous, there is also Gideon v. Wainwright (right to counsel), Wong Sun v. United States (suppression of illegally obtained evidence), Crawford v. Washington (right to confrontation), and In Re Winship …
Rakofsky v. The Washington Post: Being on the Other End of the Attorney-Client Relationship
Over at My Shingle, Carolyn Elefant muses about finding herself on the other end of the attorney-client relationship; in this case, as one of over 80 defendants in what started out as Rakofsky v. The Washington Post, what one wag dubbed Rakofsky v. The Internet, and, with Rakofsky’s lawyer giving notice to withdraw from the case, what now appears to …
On Ashe v. Swenson: Double Jeopardy and Collateral Estoppel
Many laypersons suffer from misconceptions about the protections offered by the Double Jeopardy Clause contained in the 5th Amendment to the Constitution. As Blonde Justice pointed out in one of her funnier posts, for example, double jeopardy does not cover the situation in which the defendant is forced to show up twice for court appearances on the same charge. Nor does …
Motions to Dismiss in Rakofsky Defamation Case
Here is the motion to dismiss, filed by my lawyer earlier this week on my behalf, in the Rakofsky defamation case, Joseph Rakofsky v. Washington Post, et al. Also representing Max Kennerly and Mirriam Seddiq in the same suit, David Brickman filed similar motions to dismiss for each of them.
Anna Quindlen on the Fortune of Today’s Graduates
I am a long-time fan of Anna Quindlen. Here, courtesy of The New York Times, is an excerpt from her recent commencement address at Grinnell College at which she was in typically fine form: Your parents, proudly here today, and their parents before them, perhaps proudly here today, understood a simple equation for success: your children would do better than …
On the Life of a D.C. Staffer: Sympathy for Huma Abedin
I feel badly for Huma Abedin, and not only for the reason you might expect. Yes, with her husband’s confession yesterday that he lied about the Twitter photographs, she has joined Silda Spitzer, Dina McGreevy, her boss Hillary Clinton, and a long list of women who have had to endure the humiliation of a public sex scandal. But I also …
Life at the Prince William County Courthouse
We are in the cafeteria of the Prince William County courthouse in Virgina, at lunch during what is expected to be a one-day jury trial. At a table behind me is a judge holding forth to a group of young people. He speaks. The young people lean forward and laugh, and I think of something a former administration official …
Resuscitating the Joseph Rakofsky Fiasco
Last month, in what has to be one of Daniel Snyder’s stupidest moves ever, the Washington Redskins’ owner filed suit against the City Paper for an article that was critical of Snyder and his stewardship of the team. The filing prompted an avalanche of other new reports and articles rehashing the criticisms contained in the City Paper and questioning Snyder’s …
Telling Your Wife You Have Been Sued For Defamation
My wife heard a lot of terrible and heart-wrenching stories while interviewing Iraqi victims of the Abu Ghraib torture. She was always completely spent whenever she got back from one of her trips to the Middle East, and I swear that experience took ten years off of her life. One of the stories I liked best was one that would …
When Your Business Card Is More Memorable Than You Are
I am pretty good with faces and with names. I have always been impressed — almost flattered — by people who remembered my name after a single meeting, and at one point early in my career, I decided to make a more concerted effort to learn people’s names upon meeting them and to commit those names to memory. The problem, …
Trial Ad 101: On Reading A Closing Argument at Trial
Sitting in Room 117 of D.C. Superior Court last week, I caught the tail end of a bench trial in which the defense attorney read her closing argument from a sheet of paper. I have no idea how persuasive the content of her argument was because the delivery was so poor. I had the feeling I was sitting in an …
On the Concept of Estoppel
We are having trouble with the sliding door on our mini-van. I take it back to the Toyota dealership shop a couple of times and spend a fortune to get it fixed but there still seems to be a problem with it. Finally, when I complain about having to fix it once again, the mechanic swears to me that …
Joyriding With Stanny Bum
Many of the rude words and gestures I know today I learned from driving with my father while growing up. I didn’t learn these things from my father, because I never once heard him utter a bad word. It wasn’t that using a curse word was in bad taste, though he clearly thought that too. It was that it was …
Changing the Name of the Washington Redskins
D.C. Fire Department Chief Kenneth Ellerbe created a minor controversy recently when he proposed changing the name of his department to Fire Emergency Medical Services (FEMS). Ellerbe suggested that, since the department also provides emergency care for the sick and injured, the new name would more accurately describe the department’s functions. In addition to causing some confusion, the major …
The “Back Story” in a Civil Protection Order Hearing
I took a break yesterday afternoon from losing to Norm Pattis at Words with Friends to finish up a civil protection order hearing in D.C. Many colleagues eschew any case involving a domestic dispute. The cases are messy. People tend to cry. There is lots of emotion and not much law. I, on the other hand, love these cases. I …
On the Defendant’s Acceptance of Responsibility at Sentencing
Earlier this week, I caught the tail-end of a DWI trial in which Michael Bruckheim was representing the defendant. Bruckheim had attended portions of my last DWI trial in D.C., and I decided to repay the favor. I wanted to see him cross examine the same police officer who had testified in my case. And, recognizing that everyone has a …
DWI Defense Is Not For Beginners
You would think that Jeff Gamso, as a criminal defense lawyer focusing on death penalty cases, might look down his nose at lawyers handling drunk driving cases. After all, the difference in stakes is enormous. You would be wrong. In the same blog entry in which he vents about listservs, Gamso criticizes the notion, often seen on listservs, that new …
Quarles v. Commonwealth: Coerced Confessions in Virginia
In Quarles v. Commonwealth, a recently issued opinion by the Virginia Court of Appeals, the court considered a set of facts similar to the U.S. Supreme Court case of Rhode Island v. Innis. However, finding a number of ways to distinguish this case from Innis, it concluded that the defendant’s confession should have been suppressed as the product of police …
More on Joseph Rakofsky: The Story Keeps Getting Worse
“We really didn’t check him out. He said he was this and could do that. We thought he was telling the truth.” — Henrietta Watson, grandmother of defendant Dontrell Deaner The blogosphere has been abuzz the past week with the story of Joseph Rakofsky, a 33-year-old lawyer two years out of law school who took on a murder case in …
Alternative Treatment for First-Time Drug Offenders in D.C.
With first-time offender treatment in D.C. generally restricted to marijuana possession, prosecutors frequently offer consideration under Section 48-904.01(e) of the D.C. Code as an alternative to taking a case to trial. Depending on the case, treatment under the Section can in fact be the preferred option for people charged with first-time possession of cocaine and other illegal drugs. However, unlike …
On Challenging a Prostitution/Sexual Solicitation Case in D.C.
A couple of years ago, I was representing a client on a prostitution solicitation charge in Philadelphia. I had worked out a deferred prosecution agreement with the government according to which the assistant district attorney would postpone prosecution and then dismiss the charges against my client if he successfully completed a period of 9 months of probation. As my client …
Lives of “Quiet Desperation”: More on Jailhouse Lawyers
Over at Chicago Criminal Defense, Marcus Schantz writes about the challenge of representing an incarcerated client who fancies himself a lawyer. With much at stake, time on his hands, and access to a prison “library” (often a converted broom closet with a few outdated law books), a client might spend hours poring over law books, drafting motions, and developing strategies for …
Rakofsky Dismissed in D.C. Murder Trial
I have always been somewhat suspicious of reports in the criminal law blogosphere about lawyers who misrepresent their credentials or who otherwise fail to meet the needs of their clients. Maybe I am naïve but I have questioned how frequently this actually occurs. And just as anything I might say could be viewed as suspect, I have been struck by …
The “Collective Knowledge” Doctrine in D.C.
The firmly established “collective knowledge” doctrine in D.C. provides that, in determining whether the officers possessed sufficient knowledge to establish reasonable suspicion or probable cause for a search or seizure, it is not what any individual officer knows but what the officers know collectively, whether or not the information is actually communicated from one officer to another. At the …
Why I Hate Guilty Pleas
Having a client accept a guilty plea is like getting all dressed up for the prom and then deciding to stay home. On Friday I stood with the prosecutor outside a Prince William County courtroom on a driving while intoxicated (DWI) case. I had my trial notebook in one hand bursting with photographs of the scene and breath test records …