Graffiti used to demonstrate expungements from a D.C. criminal defense attorney

Are criminal records ever truly expunged?

Jamison KoehlerCriminal Procedure

Use of the phrase “expungement of a criminal record” suggests that the record in question is truly erased/obliterated such that it no longer exists. Whether this actually happens – both practically-speaking and from a legal standpoint – is a bit more complicated.

Graffiti used to demonstrate expungements from a D.C. criminal defense attorney

Dealing with the crazies in C10

Jamison KoehlerCriminal Procedure, D.C. Superior Court

With almost 100 people making their way through arraignment court every day, it is inevitable that there will be a melt-down or two. After all, we are dealing with people who are finishing what for many of them will be the worst day of their lives.

Can I expunge a criminal record for simple assault?

Jamison KoehlerAssault, Criminal Procedure

A criminal record for simple assault in D.C. can be sealed either immediately on the grounds of actual innocence or after two years in the interests of justice.  A conviction for simple assault can be sealed after eight years. Expunging/sealing an arrest for simple assault There are two different ways to expunge/seal an arrest for simple assault.  The first way is …

expunge felony in dc

Can you seal/expunge a felony?

Jamison KoehlerCriminal Procedure, D.C. Superior Court

The first option for sealing a felony arrest in D.C. would be to file a motion immediately on the grounds of actual innocence under D.C. Code § 16-802.  The second option would be to wait two years to file it under D.C. Code § 16-803. 

“Nobody read me my rights”

Jamison KoehlerCriminal Procedure

When are police required to read you your rights? The answer actually is never.  That is, not unless the suspect is in custody and is being subjected to interrogation (hence the term “custodial interrogation”) and only then if police want to use the statements against him in court.

You Can’t Plead Guilty Without Admitting Guilt

Jamison KoehlerCriminal Procedure, Sentencing

I am watching a guilty plea from the gallery. The prosecutor reads out the alleged facts from the police report, and the defendant says, yes, that is what happened. The colloquy continues. The defendant then tells the judge that she is not actually guilty. The only reason she is taking the government’s deal is because her lawyer made her. And, …

What It Means To Be Heard

Jamison KoehlerCriminal Procedure

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 …

You Are Not A Professional Criminal

Jamison KoehlerCriminal Procedure

You should not feel bad. Believe me, you are not the first person to be fooled by police into making a statement or doing something else incriminating.  Remember:  They are professionals.  They are good at what they do.  And you are not a professional criminal.  Lots of educated, savvy and sophisticated people have fallen for the exact same trick. Some …

Let Me Talk To The Judge

Jamison KoehlerCriminal Procedure, Sentencing

Whenever a group of defendants are lined up before the court to do misdemeanor guilty pleas, one or two will often try to back out at the last minute. If the defendant is quibbling with something the prosecutor has just read from the police report, the parties can usually find common ground on facts that still make out every element …

U.S. Capitol Building

On the Crucible of Cross-Examination

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles

It happens perhaps most often in domestic violence cases that the complainant fails to show up on the morning of trial. The government would have you believe this is because the complainant fears for his/her safety, and this might sometimes be true. More often, it is because the complainant has reconsidered having the lover, spouse, or family member locked up …

U.S. Capitol building

Further Guidance on Significant Bodily Injury in Quintanilla v. U.S.

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

The D.C. Court of Appeals took another step last week in defining what up until recently has been a poorly defined term:  the “significant bodily injury” that is required in order for the government to prove felony assault. Although the appellant in Fidel Quintanilla v. United States, 62 A.3d 1261 (D.C. 2013), was convicted of multiple felony offenses, including robbery, …

D.C. skyline

Unlawful Entry, Criminal Contempt, Double Jeopardy, and Prior Bad Acts

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

When people talk about evidence being admitted at trial, they tend to think in terms of physical evidence:  guns, drugs, documents, fingerprints, DNA, that type of thing. Sometimes you need to remind them that oral testimony alone – someone getting up on the stand and testifying to what he or she saw – can also serve as the basis for …

U.S. Capitol building

D.C. Court of Appeals on “Furtive Gestures”

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

Sometimes you need to go outside your own jurisdiction to find the right language in support of an argument.  For years I have been looking for language that captures the problems — the ambiguity and the over-inclusiveness – posed by use of the police officer’s favorite catch-all phrase, “furtive gestures.”  Today I found what is probably the best language I …

American flag

Constructive Possession: Intent Required, Not Just Proximity and Knowledge

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

That a controlled substance can be possessed constructively as well as actually is a court-made decision. As Judge Ruiz put it in her concurring opinion to Rivas v. United States, 783 A.2d 125 (D.C. 2005), the “doctrine of constructive possession is a judicially developed theory of liability designed to be a ‘proxy’ for actual possession.” The government needs to prove …

Jefferson Memorial

Dorsey v. U.S.: “I Want to Speak to a Lawyer”

Jamison KoehlerCriminal Procedure, Opinions/Cases

Although you might think that invoking your right to remain silent and invoking your right to a lawyer would have the same legal effect, you would be mistaken.  In fact, if ever forced to choose, you should always ask for a lawyer. Police can resume interrogation after a period of time when you invoke your right to remain silent. But …

U.S. Capitol building

Michigan v. Long Is Ripe for Reversal

Jamison KoehlerCriminal Procedure, Opinions/Cases

Courts seem to be bending over backwards to avoid basing decisions on Arizona v. Gant. In an opinion issued last month by the D.C. Court of Appeals, for example, the defendant was pulled over for a minor traffic offense. The defendant was ordered out of the van and frisked, with the officer finding no weapons. The officer then handcuffed the defendant …

Once Again, No Consequences for Prosecutorial Misconduct

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

On the morning of trial, the prosecutor finds out that the testimony provided by a police officer at the preliminary hearing was inaccurate. Although the prosecutor himself is not planning to call this particular police officer to testify at trial, he knows that the defense attorney is. So what does prosecutor do?  Does he immediately contact the defense attorney to …

U.S. Capitol building

Enforcing Brady v. Maryland: Toward An “Open File” Discovery Requirement

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

A constitutional right without any way of enforcing that constitutional right is hardly any right at all.  That’s a pretty accurate description of the government’s obligations under the Due Process Clause of the U.S. Constitution and Brady v. Maryland to turn over exculpatory information to the defense. Relying almost entirely on the goodwill and integrity of the individual prosecutor assigned …

D.C. skyline

Interpreting Arizona v. Gant’s “Reasonable Belief” Standard for Warrantless Car Searches

Jamison KoehlerCriminal Procedure, Opinions/Cases

In Arizona v. Gant, the U.S. Supreme Court helped slow a continuing trend in the chipping away of Fourth Amendment protections. For years, most jurisdictions allowed police officers to search any car whose occupants had been arrested, even when the traditional justifications for the warrantless car search –officer safety and preservation of evidence – were absent.  Typical of the resulting practice …

In Re D.M.: When Can You Dismiss a Juvenile Case for “Social Reasons”?

Jamison KoehlerCriminal Procedure, Juveniles, Opinions/Cases

The problem with using a canon of statutory interpretation to justify a legal opinion is that you can usually find some other canon to arrive at the exact opposite conclusion. For example, to support its recent holding in In Re D.M., 47 A.3d 539 (D.C. 2012), the D.C. Court of Appeals used the rule that, whenever possible, different provisions within a …

Jefferson Memorial

In Re W.R.: Warrantless Search During a Custodial Arrest

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

Jejomar Untalan has been busy.  I reported last week on his successful appeal in In re S.B.  This week the D.C. Court of Appeals issued yet another decision bearing Untalan’s name as the appellant’s attorney:  In re W.R.,  52 A.3d 820 (D.C. 2012).  This time, however, Untalan was unsuccessful. W.R. was approached during the school day by a police officer …

Jefferson Memorial

California v. Hodari D: A Criminal Defense Lawyer’s Complaint

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

California v. Hodari D, 499 U.S. 621 (1991), is a lousy opinion. It used to be that a person was seized for Fourth Amendment purposes the moment his or her liberty was “restrained” by “some physical force or show of authority” by a police officer. This was the standard established by Terry v. Ohio, the U.S. Supreme Court case that lays …

U.S. Capitol building

Thorne v. U.S.: You Can’t Penalize the Defendant for Exercising His Constitutional Rights

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

It is a challenge for every criminal defense attorney. You want to do everything you can to put the government’s case to the test. At the same time, recognizing that you still might not win, you don’t want to antagonize the judge such that the judge decides to penalize your client at sentencing. Because, after all, you need to take …

U.S. Capitol Building

“Don’t Editorialize”

Jamison KoehlerCriminal Procedure, Humor, Trial Advocacy

Many police officers have a tendency to editorialize on the witness stand. It is not that the driver reached for the glove compartment after being pulled over so that he could have his license and registration ready for the officer’s inspection. It is that the “suspect” was making “furtive movements” upon the officer’s approach. It is not that the police …

D.C. skyline

Aborted Guilty Pleas and Superhuman Judges

Jamison KoehlerCriminal Procedure, Opinions/Cases

The disciplined judicial mind should not be subjected to any unnecessary strain;…the most austere intellect has a subconscious. How great is this language? Although the language dates back to 1972, it did not come to my attention until it was quoted in a opinion issued this month by the D.C. Court of Appeals, Plummer v. United States, ___A.3d ___, ___ …

D.C. skyline

Do Your Job, Mr. Prosecutor. And Turn Over the Evidence.

Jamison KoehlerCriminal Procedure, Current Events, Professional Responsibility/Ethics

The prosecutor has acknowledged that he should have turned over certain information to defense attorneys. That is what he says today. The case was back in 1984. Witnesses came forward when he was still preparing the case to say that there were two other men in the alley that night who were never charged.  One of these men, identified by …

Jefferson Memorial

Morgan v. U.S.: Inconsistent Evidence at Trial and “Show Cause” Hearing

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

One of the things that surprised me when I first began to practice criminal law was the notion that you could be acquitted of a particular offense at trial and then have that very same criminal charge – the one on which you were just found not guilty – serve as the basis for being found in violation of probation …

Jefferson Memorial

Simms v. U.S.: On the Pre-Trial Presumption of Prosecutorial Vindictiveness

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

David Simms was charged with possession of marijuana. On the day of his scheduled trial, the government announced that it was ready to proceed on the charge. Defense counsel stated it was still awaiting discovery on a few matters and, after passing the matter a couple of times, the court eventually postponed the trial so that the discovery issues could …

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Open Guilty Plea = Bad Case + Fair Judge + Unreasonable Prosecutor

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles

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 …

Entrapment in D.C.: The Legality of Recent Decoy Operations

Jamison KoehlerCriminal Procedure, Defenses to Criminal Charges, Legal Concepts/Principles

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 …

U.S. Capitol building

On the Criminal Defenses of “Justification” and “Excuse”

Jamison KoehlerCriminal Procedure, Defenses to Criminal Charges, Legal Concepts/Principles

  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

Jamison KoehlerCriminal Procedure

  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 …

Jefferson Memorial

Coles v. U.S.: The Right to a “Meaningful Degree” of Cross-Examination

Jamison KoehlerCriminal Procedure, Evidence, Legal Concepts/Principles, Opinions/Cases

  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, …

Jefferson Memorial

Cross-Examining a Prosecutor

Jamison KoehlerCriminal Procedure, Evidence, Trial Advocacy

  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 …

U.S. Capitol building

Confrontation Clause Be Damned: D.C. Continues to Use Surrogate Witnesses in DUI Cases

Jamison KoehlerCriminal Procedure, DUI and Driving Offenses, Legal Concepts/Principles

  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 …

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A Letter of Apology After a Guilty Verdict

Jamison KoehlerCriminal Procedure

  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?

Jamison KoehlerCriminal Procedure, Humor, Trial Advocacy

  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 …

Being Found Guilty After Pleading Guilty

Jamison KoehlerCriminal Procedure, Sentencing

  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 …

D.C. skyline

Terry v. Ohio as a Seinfeld Episode

Jamison KoehlerCriminal Procedure, Opinions/Cases

  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, …

Jefferson Memorial

Why Police Officers Love the “Plain View” Exception

Jamison KoehlerCriminal Procedure, Evidence, Legal Concepts/Principles

  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 …

D.C. skyline

Jack Lambert and My Investigator

Jamison KoehlerCriminal Procedure, Humor, Miscellaneous

  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 …

On Prison Tapes: Eavesdropping on Your Client

Jamison KoehlerCriminal Procedure, Social Media and Technology

  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.  …

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In Re Gault: “Constitutional Domestication” of the Juvenile Justice System

Jamison KoehlerCriminal Procedure, Juveniles, Opinions/Cases

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 …

On Ashe v. Swenson: Double Jeopardy and Collateral Estoppel

Jamison KoehlerCriminal Procedure, Defenses to Criminal Charges, Legal Concepts/Principles, Opinions/Cases

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 …

Aerial view of DC

On the Defendant’s Acceptance of Responsibility at Sentencing

Jamison KoehlerCriminal Procedure, DUI and Driving Offenses, 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 …

Aerial view of DC

Quarles v. Commonwealth: Coerced Confessions in Virginia

Jamison KoehlerCriminal Procedure, Opinions/Cases

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 …

U.S. Capitol building

Lives of “Quiet Desperation”: More on Jailhouse Lawyers

Jamison KoehlerCriminal Procedure

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 …

Jefferson Memorial

Why I Hate Guilty Pleas

Jamison KoehlerCriminal Procedure

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 …

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Second Chances in Virginia

Jamison KoehlerCriminal Procedure

  Here, for free, is my simple legal advice: Whatever you do, don’t get arrested in Virginia. The Commonwealth is, as far as I can tell, one of the worst places to find yourself when facing criminal charges. The laws are tough, and judges, prosecutors and juries are typically unforgiving.  Offenses that would be considered akin to a traffic infraction …

U.S. Capitol building

On Making Life Easier for Police Officers

Jamison KoehlerCriminal Procedure

Of all the tricks used by police officers, one of the most devious – yet harmless – tricks I have heard is the ploy they use to take a DWI suspect into custody after deciding to make the arrest. The purpose of this particular trick is not to improve detection techniques or to get a reluctant suspect to confess. It …

On Carrying Pictures of Chairman Mao

Jamison KoehlerCriminal Procedure, Law Practice

For the most part, the Assistant U.S. Attorneys here in D.C. seem to have things right. For one thing, they return your phone calls, usually on the same day, and I have to give them credit for that. For another, they don’t seem to sweat the small stuff. They seem to understand that many people are arrested for no reason …

Jefferson and Washington monuments

Everyone Should Have An Identical Twin

Jamison KoehlerCriminal Procedure, Law Practice

For over 20 years, Detective Wynn conducted line-ups at the Curran-Fromhold Correctional Facility (CFCF) in Philadelphia.  The line-ups were carried out in a little triangular-shaped room just beyond the main reception area. You know the way it looks from T.V.: the ante-room, the glass, and then, on the wall behind where the suspects stand, the red lines demarcating height.  The …