To live up to its name, forensic science must conform to the scientific method, which the Oxford English Dictionary defines as “consisting in systematic observation, measurement, and experiment, and the formulation, testing, and modification of hypotheses.” The scientific method seeks above all to prove or disprove hypotheses through testing in order to determine whether a particular conclusion is reliable. If recent history has taught us anything, it’s that forensic science often falls short of this ideal. But we as criminal defense lawyers can’t expose these failings without better information on lab procedures. I have written about cross-examining drug experts here. Continue reading
I was in court just before the Christmas break, waiting for a chance to talk to the clerk, and I got to see part of a colleague’s misdemeanor marijuana possession trial. I was very disheartened to see that when it came time for the DEA chemist’s testimony, the defense lawyer did not challenge her qualifications, did not challenge the identification of the seized evidence as marijuana, and did not cross-examine the chemist at all, not even to have the chemist at least list the procedures performed, etc.
And unfortunately, this is the normal standard procedure: every day in courts around the country, defense lawyers play chicken with the government; the defense exercises its confrontation clause rights and insists that the government call the chemist hoping for a no-show, but doesn’t do anything when she does show. The government (and frankly, most judges) would prefer that we just trust the black box of its pseudo-science: this is X drug, because we, the experts, say so.
Civil lawyers intuitively know that experts are fallible, usually in favor of the party paying, and judges also know to treat expert testimony in civil cases with skepticism. But this skepticism goes out the window in criminal cases. If the forensic crime lab scandals of the past few years have taught us nothing else, it’s that we can’t trust the government’s “scientific experts” to be unbiased. Defendants, our clients, deserve more. Continue reading
Recent changes in how courts view the consequences of criminal convictions for non-citizens make it imperative that criminal defense counsel not only counsel clients on the potential immigration consequences of pleading guilty, but also demand a jury trial if a conviction could lead to removal for the client. Continue reading
The Fourth Amendment to the Constitution provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The requirement that police have a warrant to enter a person’s house without permission is one of our most basic freedoms. One exception to the warrant requirement is where so-called “exigent circumstances” require police to enter a residence without a warrant. In such cases, there is a “heavy burden on the police to show that there was a need that could not brook the delay incident to obtaining a warrant.” The D.C. Court of Appeals has adopted a seven-factor test to determine when a warrantless entry and search of a residence will be allowed under this exception: Continue reading
The New York Times profiled a very concerning development in collection practices: collection companies have been making deals with some prosecutors’ offices to use official letterhead, seals, and signatures in an effort not just to collect on bad checks, but to make money on “administration fees” and “budgeting classes”, at times in amounts that dwarf the debt. Continue reading
It is often truly said that many of our best lawyers . . . are withdrawing from court practice because the nature of the litigation is changing. To such an extent is this change taking place in some localities that the more important commercial cases rarely reach a court decision. Our merchants prefer to compromise their difficulties, or to write off their losses, rather than enter into litigations that must remain dormant in the courts for upward of three years awaiting their turn for a hearing on the overcrowded court calendars.
. . . .
When the public realizes that a good trial lawyer is the outcome, one might say of generations of witnesses, when clients fully appreciate the dangers they run in intrusting their litigations to so-called “office lawyers” with little or no experience in court, they will insist upon their briefs being intrusted to those who make a specialty of court practice. . . .
- Francis Wellman, The Art of Cross-Examination 1904.
In a recent case, the trial judge asked the parties for post-trial briefing on whether Second-Degree Theft is a lesser-included offense of Second-Degree Fraud in DC. A straight-forward question, I thought, and one I believed that the prosecution basically conceded by answering that in its view attempted second-degree theft is a lesser-included offense of second-degree fraud.
Attempt is the prosecution’s catch-all for failure to prove necessary elements (other than intent), and in DC, prosecutors often charge attempt instead of certain felonies to deprive defendants of their rights to a jury trial. The only problem is that the attempt statute, D.C. Code § 22-1803, limits its application to crimes that don’t already have a provision in the Code punishing the attempt. In other words, the attempt statute is not meant to replace more specific attempt offenses, and you can’t attempt to attempt to commit a crime. Continue reading
Things happen. I know that sometimes, cars break down, urgent doctors’ appointments need to be made, things just slip peoples’ minds. But the consequences of failing to show for your criminal hearing can be dire. (The same holds true in immigration hearings, but with even greater consequences.) Not only will the judge issue a bench warrant for your arrest, which always happens at the most inconvenient times, but you could face additional charges for failing to appear. Continue reading
In some cases, the prosecution won’t offer any kind of plea bargain without what they call a “mandatory debrief,” which means that they want the defendant to talk to the police before they will offer a deal. So far in my short experience, I have not had any prosecutor actually commit to what kind of deal they would give, or even to commit to what kinds of questions they would ask or areas they are interested in. When faced with such wishy-washy promises from people they absolutely can’t trust, most defendants are justifiably wary.
Some are not. The New York Times Magazine ran a piece on the life of Alex White, a professional snitch/informant in Atlanta who actually helped bring down his handlers after they wanted him to cover up their killing a 92-year-old woman in Atlanta. And it’s not a pretty picture. Continue reading
I have long been lucky to know John Karr, a great friend and a legendary DC trial lawyer. And now I will have the pleasure of working on some cases with him as well. John’s firm is Karr and Allison and you can find out more about him here.