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
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
I don’t know how things are in other areas of the country, but here in DC we have a rash of police officers and security guards issuing barring notices to people, ostensibly on behalf of the property owners. The DC Police Department describes the barring notice fairly innocuously: Continue reading
So over the last few weeks, I have seen more and more Occupy DC protesters being brought in to DC Superior Court, arrested for this and that. DC has a system where most people charged with misdemeanors will be released on personal recognizance – allowed to go home as long as they check in with pretrial services, and follow any other orders the judge feels necessary. These orders are put in place at the time of arraignment.
All of the Occupy DC folks I saw come in have been ordered to stay away from the place where they were arrested, either McPherson Square or Freedom Plaza. I had not seen any of the defense attorneys object to this “stay away” order. It occurred to me that the stay away is an underhanded attempt by police and prosecution to stifle the protest – to deprive the movement of its leaders (if you accept that’s who the police target), or even of followers. If everyone has to stay away from the site of the protest, there is no protest.
I was talking with a very experienced local medical malpractice attorney not too long ago about the mediation requirement for MedMal cases in DC - DC Code § 16-2821. In her experience, most mediation for MedMal cases is worthless – counsel for the parties simply call in and say that there hasn’t been discovery yet, so no way to settle. But clients who feel that they have been wronged often want some sort of acknowledgment that they have been hurt, especially medical malpractice clients. My own view is that both plaintiffs and defendants can benefit if these non-monetary goals can be met in mediation.
I have an upcoming merits hearing in the Baltimore Immigration Court for a Jehovah’s Witness seeking asylum from Eritrea. I plan to present an opening argument if the judge allows (not all do). For those unfamiliar with Immigration Court, these are bench trials in the nature of evidentiary hearings before an administrative judge. These hearings are usually just a few hours long, and there is a DHS ICE lawyer who will require the asylum-seeker to meet his or her burden of proof of eligibility. I am posting my draft opening argument because it illustrates many of the reasons I am so proud to participate in the asylum process. Asylum is truly an example of America’s greatness. It will be something like the following:
Posted in Immigration
Tagged Asylum, Baltimore, DC, EOIR, Eritrea, Immigration, Immigration Court, Jehovah's Witnesses, Maryland, Religious Persecution, Washington