It’s what everyone says they want – a pitbull on their side. I like pitbulls – they are intelligent, loving animals. However, that’s not the image that most people have in mind when thinking of lawyers or what they want – the picture that comes to mind is a vicious, dangerous killer that will not let go once it sets its teeth in. In the courtroom, this plays out as an attacking, caustic style, one I think is usually counterproductive.
The New York Times has a couple of pieces on the prosecutor in the Oscar Pistorious trial (I almost wrote Jaco Pastorius – he’s a different kind of killer), who has earned the nickname “Pit Bull.” His style has been described as “pugnacious” with “a reputation for abrasive, in-your-face cross-examination,” by turns “sarcastic, theatrical, skeptical and accusatory.” He has at times called the defendant a liar while testifying. Does this work?
There are many consequences to a drug conviction, some well-known and others not obvious until you face it. One little-known consequence of a drug conviction in DC is that the DC Department of Motor Vehicles will automatically revoke your driver’s license. DC Code § 50-1403.02 requires the DMV to revoke DC driving privileges for any adult or juvenile conviction (or what they call in the juvenile system “adjudication”) for a drug offense. This is true whether the drug charge had anything to do with driving or whether you even have a driver’s license.* Continue reading
I was feeling very confident: the two police officers the prosecutor put on admitted that they had no reasonable articulable suspicion of any crime, let alone probable cause, to justify keeping my client in handcuffs on the side of the road for a half hour before checking to see whether he had any outstanding warrants. The judge would just have to find that illegal (and suppress the evidence allegedly found after the arrest when a warrant was found). And it didn’t faze me that the judge asked for additional post-hearing briefing. The law was on my side, the facts were on my side, the prosecutor couldn’t do anything. He didn’t have to. At the next hearing the judge held that the half-hour in handcuffs did not unnecessarily prolong the initially lawful stop.
trial criminal defense lawyer knows this feeling, as eloquently described by Scott Greenfield: “we stand there helpless as judges mangle words, if not concepts, waving them off with an imperial flip of the hand as if the hundred years of caselaw never happened.” And sometimes judges who know the exact words of the standards by heart will proclaim that the standard does or doesn’t apply, contrary to all precedent.
But then there are times when the judge will reconsider as we jump back in and show the judge why they should, must rule for our client. And other times when the judge’s apparent “no” or “that can’t be right” is a request to dig deeper, to explain further, to show why this is the right result. Nothing ever bad happened to a lawyer who respectfully asked to be heard. And then sometimes we win. So we hope. And we fight, but not in anger. And even if we lose one battle, the war is not necessarily over.
The lesson from the jury was clear: while they believed that there were too many discrepancies and inconsistencies in the police officers’ stories to convict our client of evidence tampering (whew! one felony avoided), they couldn’t go the rest of the way to believing that the police officers planted drugs on the defendant (damn, a felony possession conviction). It’s not surprising really. We all want to believe that the people entrusted to protect us are good and honest.
Sometimes, they’re not, but it’s a world where you need video to prove police misconduct or it didn’t happen. This is one of the reasons Scott Greenfield’s “But for Video” series is so powerful. It’s difficult for even the most open-minded to believe some of the things on these videos and even more difficult to fathom why. Sometimes police officers do misbehave, but trying to prove misconduct without really compelling evidence is often a losing proposition.
Edit: I think the above is a little too pessimistic. Yes, you want to go into trial with your eyes open, but sometimes the trial gods smile on you. In this case, we didn’t get a total win, but we were able to get a not guilty verdict on a felony charge that would have otherwise led to a consecutive prison sentence. The client was actually happy about it – he is now eligible for a probation sentence instead.
I have written before how in criminal drug prosecutions, the government analyst should be cross-examined and their case file and other information should be requested to prepare a defense case. A colleague sent me a great example of this effort paying off.
D-L Color Test of Three Suspected Marijuana Samples
A chemist at the DEA Mid-Atlantic Laboratory wrote in a report that three samples suspected to be marijuana turned purple in a Duquenois-Levine color test. The problem is that the picture of the test (not included in the report but in the analyst’s case-file) showed only one sample that might conceivably indicate the sample was marijuana (and even that one is weak). Continue reading
Posted in Criminal Law
Tagged DC, District of Columbia, Drug Cases, Evidence, Jury Trials, Maryland, Misdemeanors, Pre-trial, Scientific Evidence, Trial, Trials, Washington
Even though everyone in the DC government, from the DC Council to the prosecutors at the Office of the Attorney General, knows that alcohol in the urine has a “loose correlation” to intoxication, that urinalysis is unreliable, people are still regularly prosecuted and convicted of driving under the influence (DUI) base on their urine scores.
Back in June of 2011, DC Chief Toxicologist Lucas Zarwell of the Office of the Chief Medical Examiner, stated under oath to the DC Council that urine testing cannot reliably determine impairment or blood alcohol levels. In response to a question from council member Phil Mendelson, Mr. Zarwell testified as follows:
MENDELSON. How accurate is urine testing for measuring blood alcohol content?
ZARWELL. It’s not.
Posted in Criminal Law, DUI
Tagged DC, District of Columbia, DUI, DWI, Evidence, Jury Trials, OWI, Pre-trial, Scientific Evidence, Trial, Trials
I was consulted on a case the other day where a person had pleaded guilty to misdemeanor possession (of something that’s not marijuana) over his lawyer’s warnings that it make him removable. The judge also (post-Padilla) made sure that the person knew that there could be immigration consequences. But all the person could hear was that the prosecutor would be asking for probation if he accepted the plea deal (which was also the likely sentence even after trial).
So you can guess what happened. After an ill-advised trip abroad, the person received a Notice to Appear in immigration court. As a legal permanent resident with medical issues, he was eligible for cancellation of removal (which he ended up getting, with a sympathetic judge). But it could easily have gone the other way. Cancellation is a discretionary remedy, which means that the judge could have denied it if he had a good reason to do so. Continue reading
Unlike every other drug you can (illegally) possess in the District, the D.C. Council has made possession of any amount of liquid PCP a felony punishable by up to 3 years and/or $3000 fine.* In part, this was because the D.C. Council felt that PCP is a more dangerous drug than other so-called “hard drugs,” in that the Council believes that:
Although a person might commit a crime related to heroin or cocaine (usually a robbery to obtain the money to purchase the heroin or cocaine), individuals often commit crimes because they are on PCP. PCP give users the feeling of strength and invulnerability.
Obviously, the D.C. Council has collectively forgotten the ’80′s and the heyday of powder cocaine. Anyway, the D.C. Council then goes on to list several bizarre crimes committed on PCP as testified to by Patricia Riley, special council to the U.S. Attorney for D.C. Ms. Riley testified that:
A friend I talked to about this testimony this morning remembered a case where a man stabbed his girlfriend 57 times. I remember a case where a woman put her baby in the microwave and turned it on.
There was no support or testimony about any actions Ms. Riley may have taken to verify that these acts actually occurred. Unsupported urban legends don’t belong in sworn testimony to the D.C. Council. Continue reading
A colleague recently asked me whether the DC post-and-forfeit procedure after arrest is properly considered a conviction under federal and immigration law. The simple answer is that the post-and-forfeit procedure does not equate to a conviction. Continue reading
I am working on an appeal from a DUI conviction. I enjoy reading other lawyers’ trial transcripts seeing what works and doesn’t and coming up with ideas for my own trials. In DC, first offense DUI defendants are not entitled to a jury trial, which can be frustrating as many judges will accept what police officers say as gospel, even when obviously “shading the truth” (that’s just a nice way of saying lying). Rarely, however, do I see an officer make it so obvious as the following when responding to questions about the procedures he followed in giving the Field Sobriety Tests:
A. Are we going to go back and forth with another smoke screen? . . . You know, we’re going to go back and forth with these smokescreen questions. I’m just going to tell you I don’t recall.