Category Archives: Criminal Law

Police Officer’s Selective Memory in DUI Trial

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.

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The Need For Discretion

Recently, in browsing a well-known local lawyer’s website, I found the following “News” article on their blog:

Attorney X convinced a [local] prosecutor to dismiss Armed Robbery charges, all felonies, and all gun charges, despite the defendant being caught nearly red-handed with a shotgun in his fleeing vehicle.

The defendant plead to Second Degree Assault, a misdemeanor, giving him a strong chance to avoid certain deportation that he would have faced with any felony or gun charge. He will be eligible for parole in one month.

While there may be some ethical concern over publicizing past successes without adequately informing potential clients that there is no guarantee of such success in any particular case, that is not my main concern. The biggest problem with this self-serving news article is that it may harm the client in the future. Continue reading

Why It’s Important To Get Drug Lab Info In Drug Cases

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

In Drug Cases, Cross-Examine that “Expert”!

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. Continue reading

If a Misdemeanor Could Lead to Removal of a Non-Citizen, the Charge *Might Be* Jury-Demandable In DC

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 “Exigent Circumstances” Exception to the Warrant Requirement in DC

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.”[1] 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

Prosecutors’ Offices Violating Ethical Duties in Deals With Collection Companies

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

Lesser Included Offenses and Attempt

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

Nothing Good Comes of Failing to Show For A Court Date

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

Life After Snitching

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