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On the fumbling hand of counsel
According to the 6th Amendment, the lawyer who accepts representation in a criminal case must affirmatively assist with the defense, thereby advancing it.
On ineffective assistance of counsel in Dugger v. U.S.
A seasoned criminal defense lawyer was replaced by someone who had never before tried a criminal case. Not surprisingly, things did not go well for defendant.
No room for the boy
Representing the bad guys: Criminal defense lawyers sometimes make tradeoffs when we take on domestic violence cases
Overwhelming clients with communication
Although we may take the most pride in our skills in the courtroom, clients tend to care far more about how well we communicate with them over the life of the case.
Stop plagiarizing my website
Last year I found out that Nabeel Kibria of Ervin Kibria Law had lifted whole blocks of language from my website for use on his.
On being fired as a criminal defense lawyer
Although it is no fun to be fired by an unhappy client, there is no excuse for contradicting the client or for betraying client confidences.
A prosecutor is caught in a lie
An Assistant U.S. Attorney has been referred for disciplinary action after being caught misrepresenting facts before a U.S. District Court.
On finding out people have been plagiarizing this website
My website is making its comeback on Google. But I am troubled to find that people have been plagiarizing the site — in one case, whole paragraphs were lifted from my site and reproduced on someone else’s.
An Ethical Prosecutor Confronts Her Own Witness
BY DEFENSE COUNSEL ON CROSS Q: Ms. Smith, do you have an email account? A: Do I have an e-mail account? Q: Yes. A: I do. Q: Is it a Yahoo account? A: No. Q: What is your e-mail? A: It’s – Q: Actually, let me ask you this way. Are you familiar with an e-mail account Tamara1540@nullyahoo.com? A: I …
On the Benefits of a Flat Fee Agreement
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 …
This Is Not About You Or Me
The prosecutor is mad at me. So I send her a quick email to apologize. It is true: I am sorry. I am sorry that she has been sick. I am sorry that her daughter has been sick. And I am sorry if I embarrassed her in front of the judge. But I am not sorry for complaining to the …
Life Lessons for My Law Practice
I am in Nairobi. Kenya is famous, among other things, for its malachite jewelry, and I would like to buy my wife a malachite necklace. I check at the hotel store and see that the necklaces there sell for well over $100. So I go out to a market on the street with cash. A guy there offers me a …
Judge Easterly Lets The Facts Speak For Themselves In Damning the Government for Brady Violations
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 …
When Police Officers Shade Their Testimony
“Runner!” This is what one police officer yells to the other two officers, and all three officers take off in pursuit of a suspect who has decided to flee. According to the officer’s testimony at trial, the officers are 20 feet behind the suspect and “closing fast” when the suspect suddenly comes to full stop. The suspect bends down by …
Taking The Fall For A Client
If you work for the federal government, you have a boss. Depending on the structure and size of an organization, staffers normally work for a branch chief. The branch chief reports to a division director who, in turn, reports to an office director. The office director works for an undersecretary or an assistant secretary, and that person reports to the …
Thank You For Not Coaching Your Witness
We should be able to take it for granted that the other side will not coach its witnesses. But this is not an ideal world. A couple of years ago, for example, police officers in D.C. accused prosecutors from the Office of the Attorney General with having asked them to lie on the stand in a DUI case. (The officers …
On lawyers who take on more than they can handle
Back when I worked for the federal government, there were some employees who were really, really busy. You knew this because their offices were a mess. Their telephones were no longer accepting messages. They had that harried look. And they always talked about how busy they were, especially when you came in to give them more work. Despite all this, …
Pet Peeves: On Prosecutors and Professionalism
Whenever you walk into a store, it doesn’t matter how busy the staff may be, the clerk should immediately acknowledge your presence. Good afternoon, sir, the clerk should say. I will be right with you. You forgive a lot once these words have been spoken. Please, you respond graciously. Take your time. And you mean it. The same principle should …
On getting your own witness locked up
I put our star witness in jail. I have heard about prosecutors being slammed for doing this. One of my adjunct professors in law school – a prosecutor in Philadelphia – ended up on someone’s list of the top ten worst prosecutors in the country for having one of her witnesses in a murder case sit in custody for two …
The Ethical Obligations of a Prosecutor
According to Rule 3.8 of the D.C. Rules of Professional Conduct, a prosecutor in a criminal case shall not: “[i]ntentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused …
Open Letter to an Honest Cop
Dear Officer Parrish: A couple of weeks ago, I cross-examined one of your colleagues from the 3rd District. The issue at that hearing was similar to the one under consideration today: Whether or not the arresting officer had reasonable suspicion or probable cause to detain my client. Your colleague decided to strengthen the government’s case against my client by lying. …
Joseph Rakofsky’s Former Client Sentenced to 10 Years
After pleading guilty to involuntary manslaughter, Dontrell Deaner has been sentenced to 10 years in prison, to be followed by 5 years of supervised probation. Remember Dontrell Deaner? Just over a year ago, his name was all over the Internet in connection with the Joseph Rakofsky fiasco. Rakofsky was the lawyer, a few years out of law school, who took …
Do Your Job, Mr. Prosecutor. And Turn Over the Evidence.
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 …
Checking The Rules. Checking Them Twice.
One of the things I miss most about working at the public defender’s office was the ability to get immediate feedback from colleagues on an issue. Do you know this judge or prosecutor? Have you faced this type of situation before and, if so, how did you handle it? And so on. A major drawback to this ability, however, is …
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. …
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 …
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 …
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 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 …
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 …
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 …