On the declaration of a mistrial in Walker v. U.S.

Jamison KoehlerOpinions/Cases

A mistrial, the Court held, cannot be declared over defense objection unless “manifest necessity” requires it.  A hung jury is one example of manifest necessary. The interruption of trials that were underway when the pandemic first hit was another. 

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Unlawful Entry in D.C.: Odumn v. United States

Jamison KoehlerOpinions/Cases, Other Criminal Offenses

According to D.C. Court of Appeals decision in Odumn v. United States, “a landlord may not prohibit a tenant from inviting a third party onto leased premises for a lawful purpose, nor may the landlord prohibit such third party from entering or exiting the property through the property’s common space.”

Baltimore graffiti

Unlawful entry charge dismissed

Jamison KoehlerOpinions/Cases

According to recent D.C. Court of Appeals opinion, Foster v. United States, D.C. Housing Authority residents cannot be barred from accessing areas covered by their leases.

High v. U.S.: Cross Words and Police Officers

Jamison KoehlerAssault, Opinions/Cases

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 …

D.C. criminal defense lawyer

Mayhand v. U.S.: “A Statement is Not an Excited Utterance Unless the Declarant is Manifestly Overcome by Excitement or in Shock.”

Jamison KoehlerEvidence, Opinions/Cases

D.C. Court of Appeals Judge Catharine Easterly writes what I think. The difference is that she finds the words that elude me. And the words she writes impact D.C. law. Her impact continues in Antoine Mayhand v. United States, 127 A.3d 1198 (D.C. 2015). The “excited utterance” exception to the hearsay rule is over-used. Prosecutors can get lazy: How hard …

Teneyck v. U.S.: What is Significant Bodily Injury Under the Felony Assault Statute?

Jamison KoehlerAssault, Opinions/Cases

The D.C. Court of Appeals has issued a number of opinions over the last couple of years in which it has refined the definition of “significant bodily injury” under D.C.’s felony assault statute. In Nero v. United States, for example, the court found that a bodily injury was significant when a bullet passed through the complainant’s bicep, causing “obvious pain …

Gayden v. U.S.: Interpreting the “Resist” and “Intimidate” Provisions of D.C.’s APO Statute

Jamison KoehlerAssault, Opinions/Cases

In Cheeks v. United States, a case issued a couple of months ago, the D.C. Court of Appeals interpreted the “interfere” provision of D.C.’s Assault of a Police Officer (APO) statute.  (It is illegal under this statute to assault, resist, oppose, impede, interfere with or intimidate a police officer who is performing his official duties, and the court has had …

Worthy v. United States: The DCCA on Prior Consistent Statements

Jamison KoehlerEvidence, Opinions/Cases

Just because you repeat something over and over does not make it true.  Nor are you permitted to “bolster” your own witness. A “prior consistent statement” – a witness’ previous statement that is consistent with something the witness testifies to while on the stand – is generally inadmissible.  If it is an out-of-court statement offered for the truth of the …

Judge Easterly Lets The Facts Speak For Themselves In Damning the Government for Brady Violations

Jamison KoehlerEvidence, Opinions/Cases, Professional Responsibility/Ethics

You suspect it happens all the time:  the prosecutor withholds exculpatory information from the defendant, thereby preventing the defendant from mounting an effective defense.  The problem is that, with the government in sole possession of all the information, you have no way of proving it. And then there is Vaughn v. United States, 93 A.3d 1237 (D.C. 2014). With an …

Williams v. U.S.: Brandishing Knife in Self-Defense Not Excessive

Jamison KoehlerOpinions/Cases

You have the right to use a reasonable amount of force in self-defense assuming that (1) you actually believe that you are in imminent danger of bodily harm and (2) you have reasonable grounds for that belief. The question is not whether the use of force appeared to be necessary when looking back on the incident. The question instead is …

Holmes v. United States: Video-Assisted Testimony Not Hearsay

Jamison KoehlerEvidence, Opinions/Cases

It was a creative argument.  But, not seeing it go very far, I was frankly surprised that the D.C. Court of Appeals devoted an entire opinion to it in Holmes v. United States, 92 A.3d 328 (D.C. 2014). Marvin Holmes was convicted of stealing two shirts from the Saks Fifth Avenue store in Friendship Heights. The store detective testified at …

Owens v. United States: The Standard for Defining State-of-Mind in an RSP Case is a Subjective One

Jamison KoehlerOpinions/Cases, Theft/Fraud

In law school, we learned the difference between a subjective standard in defining a mental state and an objective one. The subjective standard focuses on the defendant’s actual state of mind. With the objective standard, it is how a reasonable person in the same position would feel. Most criminal statutes seem to use the objective standard. This simplifies things for …

The Duty to Disclose Includes the Duty to Preserve

Jamison KoehlerEvidence, Legal Concepts/Principles, Opinions/Cases

Police officers fail to preserve a critical piece of evidence, in this case a video recording taken of the incident in question.  The defendant moves for sanctions.  In opposing this motion, the government argues that the defendant’s arguments about what the recording contained is speculative.  The court agrees. Am I missing something here?  Without the opportunity to have actually watched …

No Strong-Arming of Defendants Into Accepting Pleas

Jamison KoehlerOpinions/Cases, Sentencing

When the two defendants opted for trial, rejecting a deferred sentencing agreement that had been offered by the government, Judge Brian Holeman may have been doing them a favor when he warned them that they would face certain jail-time if convicted.  After all, that is exactly what happened. At the same time, as the D.C. Court of Appeals held yesterday …

Adam Ortberg v. United States: Unlawful Entry Requires More Than “General Intent”

Jamison KoehlerOpinions/Cases

The common law distinction between “general intent” and “specific intent” offenses doesn’t work.  This is what the D.C. Court of Appeals emphasized once again in Adam Ortberg v. United States, 81 A.3d 303 (2013), a recent case dealing with the required mental state for unlawful entry. The defendant in Ortberg was charged with unlawful entry after he walked past a …

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PDS Launches Criminal Law Blog

Jamison KoehlerAppellate Practice, Criminal Law Bloggers, D.C. Superior Court, Opinions/Cases

The Public Defender Service (PDS) has just begun a blog — the PDS Criminal Law Blog — that reviews recent D.C. Court of Appeals opinions.  With Samia Fam, Nancy Glass, Jackie Frankfurt, and a handful of other public defenders sharing responsibility for the writing, the blog will certainly have some heavy hitters behind it.  The most recent entry covers Vines …

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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, …

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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 …

On Gideon and the arrogance of public defenders

Jamison KoehlerOpinions/Cases

At the Defender Association of Philadelphia, the office policy in multi-defendant cases was to represent the defendant with the most serious charges, the worst fact pattern, and the worst legal posture. The other defendants would then be farmed out to court-appointed lawyers. Although nobody ever explained the rationale behind this policy to me, I assumed it was based on a …

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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 …

D.C. skyline

Lee v. United States: Mistaken Jury Instructions on the “Defense of Others”

Jamison KoehlerDefenses to Criminal Charges, Legal Concepts/Principles, Opinions/Cases

The D.C. Court of Appeals was apparently feeling charitable. In Adrian Lee v. United States, 61 A.3d 655 (D.C. 2013), a decision issued last week, the Court bent over backwards to justify and explain mistaken jury instructions issued by the trial judge. Even as it reversed him. Adrian Lee was convicted of voluntary manslaughter and of carrying a dangerous weapon …

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Motive, Intent, Identity, and Absence of Mistake Under Drew

Jamison KoehlerEvidence, Opinions/Cases

One of the disadvantages to practicing law in D.C. is that the courts here do not use the Federal Rules of Evidence (FRE). You can’t just consult the text of a particular rule and then the case law that interprets that rule. Instead, you have to go directly to the case law or statute. This makes things unnecessarily burdensome. What …

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 …

D.C. skyline

Harrison v. U.S.: Reasonable Doubt Through Too Many “Interconnected Inferences”

Jamison KoehlerLegal Concepts/Principles, Opinions/Cases

Yes, they record your personal phone calls from prison. Yes, they have someone listen to those tapes. And, yes, they sometimes find something on those tapes to use against you. There is usually a voice recording that periodically reminds both parties — the inmate and the family member or friend he is speaking with – that the conversation is being …

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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 …

D.C. v. Loftus: Operating on a suspended license is strict liability offense

Jamison KoehlerDUI and Driving Offenses, Opinions/Cases

Driving without a license has long been a strict liability criminal offense in D.C. That is, in order to secure a conviction for this offense, the government need only prove that you didn’t have a driver’s license at the time you were driving. It does not need to prove any type of criminal intent or guilty knowledge; in this case, …

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 …

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 …

Aerial view of DC

What Is “Unprovoked Flight” Under Illinois v. Wardlow?

Jamison KoehlerLegal Concepts/Principles, Opinions/Cases

Flight hasn’t always been such a terrible thing. At one time, courts seemed to recognize that there might be all sorts of reasons an innocent person might want to distance himself from the presence of a police officer. Not all contacts with police officers are Norman Rockwell positive, particularly for certain members of our society. And, absent a reasonable suspicion …

Jefferson Memorial

In Re S.W.: Context is Critical When Proving Criminal Threat

Jamison KoehlerOpinions/Cases, Other Criminal Offenses

I have never been a fan of D.C.’s “threats to do bodily harm” statute. For one thing, it criminalizes behavior that is already covered under the assault statute.  After all, is there any real difference between threatening to hurt another person and intending to frighten someone?  For another, with almost identical language in both the felony and misdemeanor threats statutes, …

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 …

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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 …

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 ___, ___ …

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Dawkins v. United States: How Far Must A Party Go To Preserve Issue For Appeal?

Jamison KoehlerLegal Concepts/Principles, Opinions/Cases

In an opinion issued last week, Dawkins v. United States, 41 A.3d 1265 (D.C. 2012), the D.C. Court of Appeals addressed the issue of how far a party must go in order to preserve an issue for appeal.  The Court also confirmed the long-standing principle that the potential bias of a witness is always relevant in assessing a witness’ credibility. …

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The ABCs of “Character Evidence” in a D.C. Criminal Case

Jamison KoehlerEvidence, Legal Concepts/Principles, Opinions/Cases

Over 65 years ago, Justice Robert H. Jackson, writing for the U.S. Supreme Court in Michelson v. United States, 335 U.S. 469 (1948), complained about the “helpful but illogical options” available to a defendant attempting to introduce evidence of his good character in a criminal trial:  “We concur in the general opinion of courts, textwriters and the profession,” Jackson wrote, …