DC Post-and-Forfeit Is Not A Conviction For Immigration Purposes

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

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

Our Week At The Shore – A Song For C

Not law-related.  Continue reading

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

Plus Ça Change . . .

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.