Tag Archives: Trial

The Pitbull Cross-Examiner

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 Pastoriushe’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?

Continue reading

Reason # 20 To Fight Your DC Misdemeanor Drug Charge: The DMV Will Revoke Your License After Conviction

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

Sometimes They Make You Work For It

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.

Every 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.

 

DEA Chemists: In Drug Cases, Sometimes They Just Make It Up

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

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

Who Cares Whether Urine Scores Are Reliable? DC Still Prosecuting Per Se Urine DUI Cases.

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.

Continue reading

To the Permanent Resident Pleading Guilty to Drug Offense and Counting on Cancellation of Removal: Don’t

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

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.

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

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