March 20, 2013

D.C. Shooting in Drug Robbery Could Result in Decades in Prison

A 26-year-old man lost his court battle against numerous D.C. criminal charges, including aggravated assault with intent to kill, assault with a dangerous weapon, aggravated assault while armed and possession of a firearm during a crime of violence.
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Our D.C. criminal defense attorneys know that his recent conviction could result in a sentence of several decades behind bars, despite the fact that all three men who were shot survived the alleged attack.

His sentence won't be handed down until summer.

Prosecutors contend that in the summer of 2010, the defendant had arranged the purchase of a large quantity of marijuana. He met three men in a parking lot on 8th Street NW. One man handed over the drugs. An argument reportedly followed, and the suspect in turn allegedly fired at all three at point-blank range, prosecutors said.

All recovered, though two were seriously injured. Officers who were working a detail at a nearby nightclub heard the gunshots and responded.

While cases like this might seem somewhat straightforward, they can actually be quite problematic for prosecutors.

For one thing, none of the three men who were there that evening really knew the man they were meeting. They knew him only by a street name. They had a phone number, but that only led police to a prepaid cell phone.

Detectives ended up showing a series of mug shots to the alleged victims in a photo line-up, and two of the three ended up identifying the suspect. It's worth noting that just last month, a local task force created by the DC. Superior Court chief judge recommended that Metro police alter the way they conduct lineups of suspects. In the future, lineups are to be conducted with computers - not staff associated with a particular case. The idea is to prevent potential influencing of the witness, has been known to happen routinely in previous cases.

This particular line-up was conducted before that directive was handed down.

When a client of ours is facing charges as serious as these, we work to analyze the case from all aspects - from the most minute detail of fact as to how the incident unfolded, down to even the most obscure legal technicalities.

There are two ways prosecutors can prove aggravated assault, as described in D.C. Criminal Code 22-404.01. The first is to show that the defendant either knowingly or purposely caused serious bodily injury to another person. The other is to show that amid circumstances manifesting extreme indifference to human life, you knowingly or intentionally engaged in conduct or an action that created a grave risk of bodily injury to another person and through this action, you did indeed cause serious bodily injury. For someone to have suffered the legal definition of serious bodily injury requires that the person was at risk of death, or suffered unconsciousness, a great deal of physical pain, disfigurement or loss or impairment of a body part or organ.

This is a felony charge, punishable by up to 10 years in prison, and/or a $10,000 fine.

Assault with a deadly weapon, as spelled out in D.C. Criminal Code 22-402, is similar, except it doesn't require that the person have suffered any serious injury and it does require that you carried out the act with a deadly weapon, such as a firearm. A conviction on this charge is punishable by up to 10 years in prison.

Continue reading "D.C. Shooting in Drug Robbery Could Result in Decades in Prison" »

March 17, 2013

D.C. Rape Charges Dropped Amid Clash With Prosecutors, Police

The arrest of a D.C. Uber limousine driver, accused of raping a young customer, drew international attention, primarily for the fact that it involved a relatively new transportation service.
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However, our D.C. sex crimes defense attorneys know that when it came down to pressing forward with charges, prosecutors just didn't believe it all added up.

It's a rare move for prosecutors, who almost always move forward on criminal cases based on the investigation of law enforcement. But there was an apparent lack of communication between the two agencies, given that police officials were announcing the criminal charges at a news conference outside headquarters at virtually the same time an official for the U.S. attorney's office held a similar press conference announcing no charges would be filed.

The driver was released soon thereafter.

The case is still reportedly under investigation, but according to the wife of the driver, who spoke to reporters, the accuser had made sexual advances toward the driver. It's not clear whether or not any sexual contact did in fact take place, but the woman's mother reportedly questioned her about what had occurred, and at that time, the woman reportedly falsely claimed she had been attacked.

Reports are that the 20-year-old accuser called Uber from a local bar, where she had reportedly consumed three alcoholic drinks and smoked a marijuana joint. The woman told police that after the driver had picked her up, he made several sexual advances toward her. She said she attempted to ignore them, but said as she got out of the vehicle, she said the driver grabbed her from behind, knocked her to the ground and then raped her.

A DNA test was done, but there has been no information provided as to what the results of those tests were.

During the police news conference, it was announced that the driver would be charged with first-degree sexual abuse. This charge, as found under D.C. Criminal Code 22-2002 and D.C. Criminal Code 22-3020, holds that sexual contact took place either by force or threat or in a situation in which one of those involved would not have been able to consent, usually due to some type of impairment. This is a deeply serious charge that carries a maximum of 30 years in prison and a fine of up to $250,000. The situation is worsened if prosecutors are able to show that there was some type of aggravating circumstance, such as the victim suffering a serious bodily injury.

Even if the ordeal is totally behind the driver, he has already lost his job, his employer having fired him after the allegation was made several months ago.

While we don't know what prompted prosecutors to reach the conclusion we did, there are several possibilities. One would be that the accused was not a reliable witness. She was certainly intoxicated to some degree, and there may be other credibility issues we don't yet know about. Secondly, the DNA tests might not have returned results that would have assisted the prosecution in its case. A lack of that in a case that was supposedly so cut-and-dry would really hurt the prosecutor's chance of success. And finally, there is the possibility that it simply wasn't true, and all the facts proved that before it ever got to to the arraignment stage.

Continue reading "D.C. Rape Charges Dropped Amid Clash With Prosecutors, Police" »

March 10, 2013

D.C. Drug Case Mistrial After Jury Deadlock

A long-running D.C. drug case involving a nightclub owner accusecocainestripes.jpgd of trafficking cocaine resulted in a mistrial after a jury deadlocked on the charge.

Our D.C. criminal defense lawyers know the outcome surprised many of those who had been following the case, as the defendant had chosen to represent himself - almost never a wise move in any case, especially not when facing felonies and decades behind bars.

While some may view this as a success, the fact is, his ordeal isn't over. Prosecutors are likely going to file the case again. What's more, if the evidence was weak enough for a pro se defendant to successfully convince a number of jurors of reasonable doubt, an experienced criminal defense lawyer could have quite possibly secured an acquittal.

This was actually the defendant's third trial on the matter, with prosecutors saying they are likely to initiate a fourth.

This defendant had previously been convicted and sentenced to life in prison, but the U.S. Supreme Court overturned his verdict in a landmark privacy case restricting the use of Global Positioning System devices by police in order to follow criminal suspects.

A second trial resulted in a hung jury, and now so has the third.

The defendant reportedly had no legal training. He made an odd choice to put his wife on the stand and he often referred to himself during the proceedings in the third person.

For three weeks, jurors listened to evidence in the felony drug conspiracy charge against him. Deliberations lasted more than a week.

Two jurors said they could not come to a consensus about the defendant's guilt because there was a lack of direct evidence linking the defendant to the home where officers seized nearly 100 kilograms of cocaine.

After the trial, some jurors said there weren't enough photographs, while others said police didn't do a decent enough job showing how the suspect was connected to the drugs.

While prosecutors say a fourth trial is inevitable due to the amount of the drug involved and the defendant's prior felony convictions, others have called such a move excessive.

The defendant has already passed on a plea deal that would allow him to serve eight years in prison. A conviction, however, would result in life in prison.

Prosecutors contended that the defendant's nightclub was faltering. They said that in moving shipments of cocaine, he would refer to the drug as "tickets" or "music" in phone calls to buyers and suppliers.

However, several jurors said the evidence didn't appear to support the prosecutors' interpretation of those phone calls, which jurors found to be a stretch.

The GPS evidence, used in the first trial, reportedly did link the defendant to the house where the drugs were found, but that evidence had to be suppressed after the Supreme Court found it illegal that police attached a tracking device to the defendant's vehicle and tracked him for a month.

That meant a large portion of the government's case was based on the testimony of Mexican cartel informants, who had agreed to testify in exchange for lesser sentences of their own. Of course, that compromises their testimony.

We hope that by the time his next trial rolls around, he will consider having an experienced lawyer to help him seal the deal.

Continue reading "D.C. Drug Case Mistrial After Jury Deadlock" »

March 8, 2013

Fewer Than 1/3 of D.C. Murders End in Conviction, Special Report Finds

A special report by the Washington Post combed through a review of about homicides in the district between 2000 and 2011, finding that ultimately less than one-third resulted in a conviction for either a manslaughter or murder charge. stampoffinger2.jpg

Our D.C. criminal defense lawyers understand this is despite the fact that the number of overall killings has declined significantly in the last several decades.

The number of murders in D.C. peaked in 1991, totaling more than 480 at the time. Last year, they were at their lowest rate ever, around 110.

The Post spent 15 months conducting the longitudinal study to determine outcomes of D.C. murder cases as they moved through the court system.

Over the last decade, the rate of conviction was about 30 percent. That's slightly higher than results of similar research conducted in 1993, which found that 25 percent of some 1,3000 homicides between 1998 and 1990 resulted in conviction.

That increase doesn't appear to account for the strides made in science and technology that were supposed to be so key to helping law enforcement solve crimes. What's more, law enforcement apparently has significantly smaller case loads, which one would think would lead to more conviction as well.

Law enforcement and prosecutors say it's not a measurement of their own efforts (of course, they do), but rather the lack of witness cooperation. This shows that for all the exponential strides that have been made in forensics, plain old witness testimony tends to be the most valuable element in these cases.

While a defense attorney may only have so much room to dispute the science of DNA or other forensics, there is often ample opportunity to challenge witness testimony and credibility. This is why it's all the more important to choose a lawyer who is thorough, aggressive and eloquent in the courtroom.

Last year, there were reportedly 70 people in D.C. who were convicted of either manslaughter or murder. Another 21 were acquitted or the charges were dismissed after indictment. Another two individuals ended up leading guilty to lesser charges.

Prosecutors say this shows a marked improvement in prosecution rates. We would counter that the fact that they got it wrong a quarter of the time is a huge margin of error when you're talking about people who are facing decades or the rest of their lives behind bars.

Prosecutors say often cases today involve more than one suspect, and that has made it even tougher as witnesses tend to be more reluctant to come forward. Additionally, there has been a shift in the type of homicide being committed. Prosecutors say domestic situations used to be the primary source. Now, drugs, they say, are the most common motive. Drug dealers often have more than one enemy, making pinpointing a suspect more difficult.

Of those 2,300 homicides tracked by the Post, only about 150 were related to a domestic situation. Another 400 were classified as drug cases and another 330 as retaliation, typically involving gangs or drugs. Of those domestic violence cases, about 60 percent resulted in a conviction, versus about 22 percent of drug cases that ended in the same outcome.

However, we're also seeing fewer dismissals before trial. This makes some sense because a higher case load would result in a higher rate of error. That's why two decades ago, when the murder rate was higher, nearly 35 percent of cases ended in dismissals, while in the last 10 years, only about 13 percent of ended the same way.

Continue reading "Fewer Than 1/3 of D.C. Murders End in Conviction, Special Report Finds" »

March 3, 2013

D.C. Motion to Suppress Proves Valuable in Murder Case Ending in Mistrial

A mistrial has been declared in the case of a Prince George County defendant charged with double murder. gavel22.jpg

Our D.C. criminal defense attorneys understand that, as is so often the case with mistrials, a technical error was to blame. Specifically, the matter goes back to a suppression of evidence hearing, with a defense request granted, followed by a prosecution witness who then violated that agreement.

According to The Washington Post, the 30-year-old was on trial for two second-degree murder charges, accused of strangling to death two women - mother and daughter - during a home invasion robbery. Prior to the start of the trial, defense attorneys requested that evidence of other home invasions in which the defendant may have been involved should be suppressed, as it would unduly prejudice the jury against him and it wasn't necessarily relevant to the case at hand.

The judge agreed, but did say that prosecutors would be allowed to put forth evidence of one other home invasion involving the defendant - but that was it.

However, a federal agent who took the stand for the prosecution and under questioning mentioned multiple home invasions involving the defendant.

That was enough for the judge to declare a mistrial - something even prosecutors would later say was the right decision.

While none of this matters a whole lot to the defendant in this case - he's already been sentenced to more than 100 years in prison in connection with a separate federal case for the home invasions - such an incident could matter a great deal for you. It illustrates why it's critical for your defense attorney, when preparing for trial, to push for the blockage of as much information as possible.

First of all, the less prosecutors have to work with, the weaker their case. Secondly, approval of such motions give us better grounds on which to challenge prosecutorial overreach or sweeping statements by witnesses.

There a number of ways that your defense attorney might raise a request for evidence suppression.

One of those ways regards the way in which that evidence was collected in the first place. If law enforcement somehow illegally obtained the evidence being used against you, it would fall under the exclusionary rule. For example, if you officers continued to press you for a confession even after your clearly stated your desire for an attorney , it's likely we could have anything you said after that point suppressed. Likewise, if officers entered and searched your home without a warrant, anything they found there might be subject to suppression.

This is sometimes referred to as the "fruit of the poisonous tree" doctrine. That is, if an officer searches you illegally and finds drugs in your pocket, the "poisonous tree" is the illegal search and the drugs are the "fruit" - and your defense attorney should seek to get it tossed. That could mean dismissal of the entire case, depending on the circumstances.

Another way a judge might decide that evidence should be suppressed is if prosecutors intentionally or improperly hide it from the defense prior to trial. This is rare, but it does happen and it's a violation of the Fifth Amendment, which means it's likely to result in a mistrial.

Continue reading "D.C. Motion to Suppress Proves Valuable in Murder Case Ending in Mistrial" »

March 1, 2013

D.C. Justice System Skewed to Prosecutors, Defense Team Must Be On Offense

It's a misconception that the criminal justice system inherently favors a defendant. king2.jpg

Our D.C. criminal defense attorneys know that despite guiding principles such as "innocent until proven guilty," "burdens of proof" and "probable cause," the deck is literally stacked against defendants before they ever enter the courtroom, with prosecutors the ones holding the cards.

The excessive power bestowed on prosecutors is something that has long frustrated defense teams, even when the case we have is strong. Specifically, a tactic known as "stacking" involves prosecutors who pile on every single conceivable (and in some cases inconceivable) charge against a defendant, threaten him with the possibility of life in prison if he goes to trial and then force him to take a plea on a lesser charge.

Even innocent parties were faced with a serious risk: Do I go ahead and take these two years in prison and a convicted felon label for something I didn't do, or do I roll the die at trial and risk spending a lifetime behind bars?

Meanwhile, the judge and jury are left almost entirely out of the process.

This is not an especially new phenomenon, though it is certainly a shift that has been realized in the last five decades or so. Prior to that, a judge who recognized charge-stacking would have simply tossed the entire case out. Not so anymore.

This system has garnered a few outcries from advocates or attorneys here and there, but hadn't gained an intense national spotlight until the death of Aaron Swartz. As you may know, Swartz was a computer whiz - founder of Reddit and internet activist who felt that information was a fundamental right that should not be only for the privileged elite. It was this belief that drove him to allegedly hack into MIT's databases and download millions of academic files.

For this, he was facing 35 years in prison on more than a dozen federal felony charges. As plea deal negotiations broke down and the case moved closer to a trial, many questioned whether such charges really were fair in light of what Swartz had done. After all, he was facing charges that would have him serving the same amount of prison time as murderers and rapists.

The case never made it trial, though, as Swartz committed suicide.

Many have said that this tragedy didn't have to occur. Swartz's devastated parents have gone so far as to say that prosecutors have blood on their hands.

The case has prompted a flurry of discussions regarding how court systems could enact better checks and balances to prosecutorial power - something we wholeheartedly support.

For starters, we know that the framework in which prosecutors are operating is one that inherently rewards the number of convictions they get. Little mind is paid to whether the facts of the case actually warranted the charges filed or the conviction handed down. Numbers - not accuracy - are the greater value.

We may not be able to do much to change that, but there have been discussions about potentially having prosecutors' offices pay when their cases are dismissed or when a defendant is found not guilty. The theory is that this would prevent the whole problem of stacking. Our only concern with this approach is that financial motives may prompt prosecutors to push hard to press forward in cases that have already been filed, even when it becomes apparent that the accused isn't actually guilty or when it would otherwise make sense to drop most of the charges.

Another approach would be to expand the role of the judge in deciding which charges are appropriate by having him or her review each of the charges and the facts of the case to ensure they line up accordingly. Of course, this would take a fair amount of time, but in the end, judges might expect that trials and plea bargains could take less time when the case centers on two charges as opposed to 12.

Yet another suggestion is to expand the role of grand juries. As it now stands, they generally make yes/no decisions regarding probable cause in felony cases. Really, this is more of a technical legal matter. If we could arrange it so that these entities were responsible for reviewing each charge to make sure they were fair and equitable, given the accusations and evidence, we might be able to reduce prosecutorial stacking - and hopefully, the number of people forced to plead guilty to something they didn't do.

We are on your side and remain committed to aggressively fighting for your rights.

Continue reading "D.C. Justice System Skewed to Prosecutors, Defense Team Must Be On Offense" »

February 23, 2013

Formal Review of D.C. Rape Case Handling Underway

The D.C. City Council's public safety committee has ordered the review of hundreds of local rape cases, following a scathing report by Human Rights Watch indicating that Metro police did not investigate or even document dozens of sexual assault complaints over the last several years.aloneagain.jpg

Our D.C. criminal defense lawyers know that the police department has adamantly denied any wrongdoing, but has said it will cooperate with the outside law firm conducting the review, free of charge, at the request of Councilman Tommy Wells.

The Human Rights Watch, too, said it will cooperate with the agency in handing over all of its findings.

It's expected that the conclusion of the investigation will involve a public hearing.

In the meantime, both sides have asked the U.S. Justice Department to come in and conduct a separate, simultaneous review.

The police department has said that the cases the rights group claimed were "missing" - that is, no report was filed - actually were not. Rather, the group was not looking in the correct place for those files. The police chief has since said the agency intends to change the way it categorizes certain cases involving sexual assaults so that such confusion doesn't occur in the future.

Police said that in an internal review, some of those "missing" cases actually resulted in an arrest, proving, they say, that the case was properly handled. Additionally, some women who received treatment for a sexual assault in a D.C. hospital were actually attacked outside the District, which meant that the investigation would have been handled by an outside agency.

However, the rights group maintains that police officers routinely persuaded victims not to press forward with charges and that the agency intentionally classified the crime incorrectly in its records, in order to downgrade the crime and thus reduce its documented crime rate.

Lower crime rates mean higher safety ratings which can mean more grant money for agencies and cities.

The reason all of this matters to rape defense lawyers is because, for one thing, officers who attempt to persuade key witnesses of anything should be subject to serious scrutiny. Police are hired to be impartial observers of a scene and enforcers of the law. When they insert themselves into the situation and attempt to sway the outcome, that casts a major pall on their overall judgment.

Secondly, a number of these instances involved cases that were initially closed early on, only to be re-opened many months later. As we have repeatedly reported here, forensic evidence is quite vulnerable to misinterpretation and contamination. The potential for this is even greater the more time passes, especially in rape cases. This means there is a higher likelihood of a wrongful conviction. That is something that should concern all of us.

In D.C., there are four different degrees of sexual assault, as defined in D.C. Criminal Code 22-3001 through D.C. Criminal Code 22-3004. Any one of these charges can result in serious penalties, fines and lifelong labels as a sexual offender.

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February 18, 2013

D.C. Wrongful Convictions Prompt Police Procedure Changes

Egregious miscarriages of justice have resulted in a task force, formed by D.C. Superior Court's Chief Judge, to recommend a series of changes in how the Metro Police force does its job. balance1.jpg

Our D.C. criminal defense attorneys understand that the changes, stemming from a number of wrongful convictions, will include protocol for suspect line-ups, defendants' informant notifications and the length of time criminal trial records are maintained. Serious mistakes made with regard to each of these has, in the past, resulted in the imprisonment of innocent people - sometimes for decades.

Suspect line-ups have often been a source of error - not just in D.C., but across the country. There is a huge potential for police, prosecutors and others to influence the outcome of those lineups.

The court has now recommended that they be conducted with computers, as opposed to investigators who are closely involved with the case.

The destruction of trial court records after 10 years will also come to an end. The advent of DNA technology, which has cleared numerous defendants many decades after they were convicted, has rendered those records invaluable for much longer than 10 years. Starting next month, the courts will have to hang onto those records permanently. This is the first time D.C. courts have reviewed the records retention policy since the mid-1980s.

Courts will also be giving criminal defendants a much earlier notice on the details of any evidence or information obtained from a police informant. This information will include things like whether she has a criminal record and what her motive might be - whether a direct monetary payment from police or reduction of an impending criminal sentence - and also whether he or she has been a witness for police/prosecutors in other past cases. That information must now be handed over a minimum of two weeks before trial. Before, defense attorneys could only get their hands on it a few hours before the start of the trial - hardly enough time to prepare an effective counteroffensive.

D.C. isn't revolutionary in adopting these practices. Many other state legislatures have already done so, and D.C. is actually behind the curve.

The task force found that of the more than 300 criminal exonerations we've seen in D.C. since 1989, some 70 percent of the cases involved an original conviction based on faulty eyewitness testimony. That includes a number of cases in which police used jail inmates as informants, even when it was known at the outset that the individual had serious credibility problems.

This just goes to show that juries tend to give a lot of weight to eyewitness testimony, when clearly, they should be giving it a great deal more scrutiny. The human mind and memory is not full-proof, and the truth can be further clouded when we start to factor in drugs, alcohol or an incentive to lie.

But police and prosecutors know all this. There has simply never been much of an incentive for them to change, and the courts and legislatures have been slow to act, lest they be seen as easy on crime.

Right now, the local U.S. attorneys' office is reviewing hundreds of serious felony convictions over the last several years to determine whether there were any forensic or witness errors. So far, the agency says it has found none.

While we applaud the changes so far being made, we think there is more to be done. Just to start, such reviews should be conducted by an outside, independent agency.

Continue reading "D.C. Wrongful Convictions Prompt Police Procedure Changes" »

February 12, 2013

D.C. Shooting Conviction Overturned on Appeal for Judicial Error

Prosecutors are deciding whether to retry a man who was convicted of assault with intent to kill in D.C., following the 2008 shooting death of a 13-year-old visiting Alabama boy. gun5.jpg

D.C. criminal defense lawyers understand that the conviction was overturned by the D.C. Court of Appeals late last month, after finding that the judge overseeing the 2011 trial did not properly instruct the jury following its return of guilty verdicts for five of the six charges of which he was accused.

According to court records, the trial actually should have ended in a hung jury. When jurors first returned to the judge with their decision, they said all but one juror was in agreement. The judge responded that they should deliberate until all of them were in agreement. What he failed to do was warn the jurors about pressuring the one who disagreed into siding with their viewpoint.

In order for a verdict to be rendered one way or another in a criminal case, the decision has to be unanimous among jurors. Even in cases where the evidence against you may be substantial, all a defense attorney has to do is convince one or two members of the jury of reasonable doubt with regard to your guilt.

This error, the appellate court found, created the potential for coercion of the juror who was not in agreement.

The fact is, this was a complicated case, with some eight suspects involved in a spree of shootings in the District's Trinidad neighborhood that summer. The boy who was killed was visiting his grandmother, and was shot in a drive-by. But prosecutors reportedly had a difficult time obtaining statements from credible witnesses.

In fact, they only had two direct witnesses to testify, and one of those had struck a deal with prosecutors on another case in exchange for his testimony. What's more, he had reportedly admitted to using multiple drugs that day, and was reported to have a history of mental health issues.

Two other men charged in the case were acquitted and the jury was hung in the case of a third. Prosecutors dropped charges against a fourth man.

The individual in this case is already serving a 10-year term after he pleading guilty to an obstruction charge in a separate murder trial.

Police have other suspects for whom they are reportedly continuing to search.

The whole spree of incidents prompted D.C. police to set up military-style checkpoints in the neighborhood, which a federal appeals court later found to be unconstitutional.

The main point in all of this is that there are almost always going to be legal technicalities in every criminal case. But the appeals process can be quite lengthy and despite the outcome here, it can be extremely difficult to be successful in having an earlier verdict completely overturned. The key is to make sure you have hired a criminal defense lawyer with extensive experience in the area of law for which you are facing charges.

Continue reading "D.C. Shooting Conviction Overturned on Appeal for Judicial Error" »

February 10, 2013

D.C. Defense Lawyers Should Challenge Officer Testimony

In criminal cases across the country, juries tend to give a great deal of weight and credibility to the sworn testimony of a police officer. blackpolicecuffs.jpg

However, D.C. criminal defense attorneys realize that many times, that testimony should be given no more weight than any other person's word, especially given the fact that officers may actually have incentive in some cases not to tell the truth.

This issue was recently highlighted in a New York Times opinion piece, written by Author Michelle Alexander. In fact, Alexander posits that police officers' statements should actually undergo a greater level of scrutiny.

It seems a radical concept, but less so when you hear why.

First, she notes that a number of current and former police officers have admitted that lying is the norm in police culture, particularly with regard to illegal drug searches. A former San Francisco police commissioner recently penned an article in the San Francisco Chronicle, saying that perjury under oath by undercover detectives was often used to justify illegal drug searches. He claimed this fact wasn't even particularly well-hidden, and was commonplace across the country.

In New York City, Alexander notes, hundreds of drug cases were dismissed two years ago amid evidence that officers had mishandled evidence. Further, that same year, a New York State Supreme Court justice made note of the "widespread culture of lying and corruption in the department's drug enforcement units."

It's not just drug cases, though. Late last year, the district attorney's office in the Bronx stopped prosecuting trespassing cases altogether if the arrest happened in front of housing projects - solely because officer embellishments in those situations had reportedly become the norm.

In D.C., a police officer underwent a criminal investigation after she reportedly lied to police in denying she witnessed a murder that she in fact actually had. The 12-year veteran had been off duty at the time, but said she hadn't been in a position to see anything with regard to a shooting on Minnesota Avenue NE. Upon further questioning, however, it was revealed that she had "not been completely forthcoming" in her initial statements.

Usually, though, it's not a case of officers protecting the guilty. Rather, it seems officers have an incentive to lie in order to have an innocent person convicted, or at least just arrested.

Alexander notes police departments and individual officers are sometimes rewarded for the number of searches, stops and arrests. For example, the Edward Byrne Memorial Justice Assistance Grant Program, a federal funding vehicle, encourage police agencies to boost their overall drug arrests if they hoped to compete for the cash. The rewards weren't based on convictions - just arrests. So it didn't matter if the evidence was actually strong enough to support an outcome of guilty, so long as the arrest counted toward the overall tally.

Numerous other grant programs work this way as well.

Additionally, a number of police agencies encourage officers to boost productivity, with the most obvious measuring stick being the number of arrests or stop-and-frisk encounters an officer has in any given day or week.

What makes matters worse is that catching an officer in a lie can be difficult, in no small part due to the fact that officers aren't inclined to expose other officers.

All of this illustrates why you shouldn't lose hope simply because you've been arrested - but you do need to secure the services of an experienced defense lawyer.

Continue reading "D.C. Defense Lawyers Should Challenge Officer Testimony" »

January 31, 2013

D.C. Plea Deal Without An Attorney Could Lead to Deportation

If you are an immigrant who has been recently arrested in D.C., this information will be particularly important for you: Do NOT accept a plea deal - even on a misdemeanor charge - without first consulting with a lawyer. despair.jpg

D.C. criminal defense lawyers understand that prosecutors often take advantage of the fact that legal and illegal immigrants in this country may not fully grasp the scope of their rights. Many are pressured into accepting plea deals, without being told that a conviction even on minor charges may - and often does - result in deportation.

The law requires that an attorney be appointed to all defendants accused of a felony crime in which they are facing more than a year behind bars. However, misdemeanor charges in which you aren't facing serious jail time don't require that the government give you a lawyer. But it is a very good idea, especially given what is at stake for immigrants.

The issue was recently highlighted in a report by The Washington Post. The reporter interviewed a 19-year-old who was arrested last year for a misdemeanor marijuana possession charge in Virginia. Having never spoken to an attorney and wanting to get the case over with, he chose to simply plead guilty.

Prosecutors told him all he would need to do is pay a $185 fine and hand over his driver's license for six months.

He had no idea that the moment he did this, he gave the federal government grounds upon which to deport him - which is exactly what happened a few months later.

Such scenarios are not isolated, and in fact have become commonplace.

Most of these individuals are arrested for non-violent, minor crimes. Yet they are being grouped in with with violent offenders in the deportation process.

It's become an increasing problem as of late because prosecutors in a lot of jurisdictions have begun automatically waiving jail time for a number of minor misdemeanors. The goal for them is to save the state money by preventing non-violent offenders from being housed in a correctional facility. But the latent effect is that by doing so, judges are freed from the requirement of having to provide defendants with attorneys - which also saves the government money.

Per Padilla v. Kentucky, a 2010 U.S. Supreme Court ruling, criminal defense lawyers are required to explain to illegal immigrant clients that when convicted of drug-related offenses, there is a heightened risk of deportation. This is an important consideration when deciding whether to fight the charge, as opposed to accepting a plea bargain. However, immigrants who don't have a lawyer may not know this.

Some have indicated that the whole process has become a deportation trap, something judges and prosecutors have of course denied.

Advocacy groups are now saying that the Padilla v. Kentucky standard should be applicable to prosecutors or judges when the immigrant defendant has no defense attorney.

We don't see them voluntarily adopting that standard anytime soon. That's why you need a criminal defense attorney, even in minor cases.

Continue reading "D.C. Plea Deal Without An Attorney Could Lead to Deportation" »

January 31, 2013

A Good D.C. Criminal Defense Can't Be Mounted Alone

A former night club owner and a suspected D.C. drug trafficker is facing his third trial, at which he has announced he intends to forgo a lawyer and represent himself. penitentiary.jpg

Our D.C. criminal defense attorneys want to make it clear: This is almost always a mistake. It's called a "pro se" defense, and even defendants who are also attorneys rarely choose to go pro se. The reason is because it is so often ineffective. The vast majority of pro se litigants end up losing - not because they aren't intelligent or because they are not innocent, but rather because they failed to properly articulate all this to the court. It's no simple feat, especially if you have no legal background.

This is true even in minor cases, but particularly in the face of felony charges, where one is looking at potentially years behind bars if convicted, hiring an experienced defense lawyer is critical.

It's true that the judge may cut pro se defendants some procedural slack during the trial if you choose to go this route - but not much. One will still be expected to file the appropriate motions, make the appropriate requests, make appropriate objections and do it all in a timely manner. That's tough to do in any circumstance, but it is even more difficult if you are locked up while awaiting trial.

To give you an idea of how much judges tend to dislike the approach, consider the response given by the U.S. district judge in this case, upon granting the defendant's request to represent himself: One reporter noted the judge was "visibly pained." She said it would be the first time in her two decades as a judge that someone had made this request, and that the decision was "much to my regret and against my advice."

The defendant in this case has been locked up for the last eight years, when he was arrested for allegedly spearheading a high-level drug trafficking ring with Mexican connections. His first trial resulted in a hung jury. He was then convicted at his second trial and sentenced to life in prison. However, that conviction was later reversed by the U.S. Supreme Court, which ruled his Fourth Amendment rights were violated when police affixed a tracking device to his car without a warrant. (That evidence reportedly linked the defendant to a home where officials discovered some 100 kilos of cocaine and $1 million in cash.)

Prosecutors then offered him a plea deal that would have allowed him to serve about eight more years in prison by pleading guilty to conspiracy. He rejected that offer, and to the judge's chagrin, has been approved to represent himself at his third trial. The defendant told the judge that he and his attorney were not able to reach a consensus as to a defense approach. He added his attorney had no faith in him, and as a result, he felt better off on his own.

But as the judge in this case said, it's a move that's akin to a person shooting himself in the foot. She added he would be on his own and it was not her job to protect him.

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January 30, 2013

Violent D.C. Hate Crimes Increasing, Report Indicates

In a news conference reviewing recently-released crime statistics, D.C. Police Chief Cathy Lanier touched on the lowest murder rate in five decades and that and uptick in robberies and rape still only accounted for about 20 percent of all reported crimes. motivationalhate.jpg

What she didn't mention was the increasing number of so-called hate crimes in the district, specifically those allegedly targeting individuals based on their sexual orientation. Our D.C. criminal defense lawyers understand this figure shot up by nearly 20 percent from January to November 2011 as compared to the same time frame last year, according to the Washington Blade.

Similarly, so-called hate crimes against transgender individuals rose by 13 percent during that same time frame.

In the first 11 months of last year, there were nearly 80 hate crimes reported for each category of potential victim. These include: sexual orientation, gender identity, ethnicity and national origin, religion, race, political affiliation, disability and homelessness. Crimes alleged to have occurred on the basis of sexual orientation reportedly accounted for nearly 55 percent of these, race for 12 percent and gender identity at 11 percent.

While final figures from December are still pending, activists groups are noting at least three more on the basis of sexual orientation.

From a defense lawyer standpoint, the issue of whether an act is a hate crime is a subjective question. For example, just because a minority or gay person is attacked does not mean that the incident was motivated by hate. Yet failure to mount a proper defense in such cases can result in a significant term behind bars.

In one case, a 23-year-old transgender woman was waiting at a bust stop in Northeast D.C. last February when she was reportedly stabbed to death by a 55 year-old man. The suspect was arrested two weeks later and charged with first-degree murder. Activists decried the fact that it wasn't being prosecuted as a hate crime. But police, however, have said that the motive was robbery.

This matters because according to D.C. Code 22-3701, D.C. Code 22-3703 and D.C. Code 22-3704, any person who is convicted of a bias-related crime - that is, one motivated by the defendant's prejudice of the victim - can be fsentenced to 1.5 times the maximum for that crime.

So suddenly, a four-year sentence becomes a six-year sentence.

That's a major enhancement - and one our D.C. criminal defense lawyers aim to have removed.

It's tough for prosecutors to prove anyway. It involves not only proving that an individual committed a crime, but also proving intent. This is no easy task, but it is often largely dependent upon what a defendant said just before or after the crime (Did he or she use racial or ethnic slurs while carrying out the act?). It also may hinge on anecdotal evidence from those closest to the defendant regarding whether he or she had a long-standing history of prejudice against individuals in the victim's class.

In any case, if you are charged with a hate crime in D.C., do not take your chances with a public defender or inexperienced defense lawyer.

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January 29, 2013

D.C. Arrests Based on Racial Profiling Won't Stand Up in Court

The American Civil Liberties Union recently announced a victory out of Maryland, after the state's high court ordered the state police to release internal racial profiling records to the advocacy group. maninhat.jpg

D.C. criminal defense lawyers know that racial profiling, while unquestionably illegal, can be very difficult to prove in court.

This victory in Maryland could serve to shed light on how police agencies investigate such complaints, and provide insight that may allow defense lawyers to be more effective in defending clients who have been wrongfully detained and arrested.

Simply put, racial profiling is a form of discrimination sometimes used by law enforcement in which a person's cultural background, ethnicity or race is used as the primary basis to formulate suspicion of guilt in a crime. Fifteen years ago, we would have been talking primarily about African Americans, but following Sept. 11, 2001, we also now see it routinely carried out against Muslims or Arab Americans.

Acquiring proof of it, though, is tough, especially on an individual case basis. Often, it takes an extensive amount of research in looking at whether this officer - or the law enforcement agency as a whole - disproportionately detains and arrests minorities over their non-minority counterparts. Obviously, if the officer was known to make racially or culturally disparaging remarks, that could bolster the case as well.

But even if there is not enough proof to firmly assert racial profiling was the reason for your stop, these cases are often found to be lacking the element of reasonable suspicion. Reasonable suspicion means that beyond a "hunch," an officer has to have had some specific and articulable facts that led to the conclusion that you were, are currently or are about to be involved in a crime. This is not a strenuously high standard, but it's enough that if the stop was indeed based solely on your race or cultural background, the standard is not met.

With regard to the ACLU's request, the group sought to dig deeper than any one case. They wanted to see how racial profiling complaints against Maryland state troopers were being investigated and resolved, with the ultimate goal of determining whether such claims were even being taken seriously. There was good reason to suspect they weren't.

Back in the 1990s, the National Association for the Advancement of Colored People filed a civil lawsuit against the Maryland State Police, alleging widespread racial profiling. Part of what came out of that was a Consent Decree in 2003 in which the state police agreed to create an easy process to file a complaint and further agreed to thoroughly investigate those complaints. In that time frame, about 100 complaints were filed by minority drivers. However, the state police reported not a single one of those cases was substantiated.

This raised the suspicion of the ACLU, which then sought to learn more about how the complaints were filed.

But Maryland State Police fought the request, claiming these were personnel records and not subject to public release.

A Court of Special Appeals had ordered the agency to turn over the records back in 2010, a decision affirmed by the Maryland Court of Appeals. However, the state police appealed to the Maryland Supreme Court, which has just affirmed the rulings of the lower courts.

While this isn't likely to have any immediate or direct impact on D.C. arrestees, it does set a precedent for similar requests in other jurisdictions.

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January 28, 2013

Report: D.C. Sex Assault Cases Botched By PD

A new report by Human Rights Watch alleges that D.C. police failed to investigate some 170 rape cases in the last three years. eyesdontsaylies.jpg

The police chief has responded that the group's assertion is based on a fundamentally flawed understanding of the department's statistics.

Our D.C. criminal defense attorneys realize that if the advocacy group's accusation is true, it could serve to undermine the reliability of police investigators in future sexual assault cases. A department that potentially cherry-picks the cases it will pursue with investigative resources can't be trusted in a court of law to provide impartial details in the cases it does take on.

It's worth noting that the incidents of reported sexual assaults in D.C. spiked by more than 50 percent in a single year from 2011 to 2012.

The advocacy group said its findings, which will be formally released late this month, were based on reports made by women who were treated at the local MedStar Washington Hospital Center between the fall of 2008 and the fall of 2011. Of the 480 cases in which women claimed sexual assault, about 35 percent were not documented as such in initial police reports. Neither were those cases given file numbers, which are typically used for tracking.

The problem with this for defendants is that if cases are ever brought to trial, investigators may have wasted critical time in uncovering evidence that could have potentially led to an exoneration. The longer a case remains stagnant, the higher the probability that valuable evidence may be lost forever. This is more true in sexual assault cases than perhaps any other.

In one 2010 case, the file was closed and then re-opened more than nine months after the fact.

As we recently reported in our D.C. Criminal Defense Lawyer Blog, forensic evidence is already vulnerable to contamination and misinterpretation. The potential for this is even greater the more time passes.

The advocacy group has said its 200-page report will include anecdotal narratives from alleged female victims who report their claims either weren't investigated properly or taken seriously. Specifically, alleged victims who had been consuming alcohol or who were unable to recount exact details of certain circumstances were dismissed.

Cases in which the alleged victims did not want to talk to police or have a report filed were not included in the research.

The police chief says the advocacy group is out to garner headlines and that it abused the department's trust after being given an unprecedented amount of access to records. However, the group contends it only got the files after it successfully sued for them.

Still, the chief has said since word of the report first became public, her agency has changed the way it files reports on sexual assault cases, filing reports on every single case - regardless of whether there is substantiation - and then adding the distinction of whether it is a full-blown case or merely an allegation.

But this too could pose problems for individuals accused. Now, for potentially unsubstantiated claims, there will be a public record of extremely damaging accusations against the suspect on file and subject to review by anyone.

The chief said the department also plans to create a website that will allow alleged victims who believe their cases were not handled properly to file a direct grievance. Additionally, all prior sexual assault complaints made between 2008 and 2011 that were classified as either "informational" or "miscellaneous" will be reviewed by two detectives.

In the end, this could mean even more sexual assault arrests made in the near future.

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