Washington DC Criminal Defense Lawyer Blog

A D.C. man has been arrested in connection with dozens of commercial burglaries in Maryland, and authorities say he might be connected to dozens more in the district.

Our D.C. burglary defense lawyers know that while the suspect isn't accused of anything violent, a case like this is high stakes, based on the sheer volume of crimes alleged.

We're dealing essentially with two different crimes here: burglary and theft.

Let's start with burglary, as defined in D.C. Criminal Code 22-801(a) and (b). First-degree burglary deals primarily with dwellings that were occupied by other humans at the time you entered. In this case, we're talking about commercial structures, and in these cases, whether or not they are occupied, it will be considered a second-degree burglary. This charge is still a felony offense, which is punishable by between 2 to 15 years in prison.

Next, we have theft charges. Per D.C. Criminal Code 22-3211 and 22-3212, we know that theft is the taking of another person's property for the suspect's own benefit or for the benefit of some other third party. Penalties for theft are going to depend on the amount of property stolen. Anything over $1,000 will be considered first-degree theft, which is punishable by up to 10 years in prison. If the value is less than $1,000, it's considered a second-degree theft, which is punishable by up to 180 days in jail.

So let's assume this individual is convicted for 12 counts of second-degree burglary and 12 counts of second-degree theft. We would be talking about a potential maximum penalty that would exceed the rest of his life in prison.

With the help of a good lawyer, it's possible many of those charges could be dropped and he may not serve more than probation, if that. It all depends on the weight of the evidence against him.

This case was kick-started by a marked increase in commercial burglary reports earlier this year. For this reason, local police agencies dedicated special resources to solving these cases, which they now say were mostly connected to this one individual, who is on probation for similar crimes in Virginia.

Authorities say he used a flathead screwdriver to gain entry to businesses and office buildings, from which he took cellphones, laptops, computers and other electronic devices. He also reportedly stole gift cards and credit cards, making several purchases from Banana Republic, Victoria's Secret and H&M.

What will be a special hurdle for the defense in these cases is the fact that many of these places that were burglarized were equipped with surveillance cameras. Further, in at least two of the break-ins, witnesses reportedly spotted him and were able to describe his appearance to investigators.

How difficult this evidence will be to overcome will depend on the quality of those videos, as well as the reliability of those witnesses. There is a good chance that a decent attorney could successfully suppress evidence of his prior burglary convictions, as it could prejudice a jury against him, but one doesn't necessarily have anything to do with the other.

Continue reading "D.C. Burglary Arrest Stems from Dozens of Alleged Crimes" »

The Council for Court Excellence, a watchdog of D.C. courts, is proposing a statute that would require law enforcement to immediately release people who are arrested for non-violent, misdemeanor crimes.

Our D.C. criminal defense lawyers know that this would immediately have the effect of reducing the crowded jails in the District, as well as saving taxpayers' money, police officer's time and defendants' headaches.

The law would be primarily intended for those arrested on offenses like possessing an open container of alcohol or minor incidents of shoplifting.

As written, it would not be applicable for those charged with a felony or domestic violence (regardless of whether it was filed as a misdemeanor or felony) or anyone who is already on parole or probation or who is considered to be a potential flight risk.

A measure like this could ease many burdens for those in D.C. Still, it's important to point out that even if it does pass, we don't want to give people a false sense of relief that a conviction isn't going to mean any jail time. This law would pertain only to the initial arrest period. If you are convicted, a judge could still potentially sentence you to up to a year in jail for a misdemeanor.

The best way to avoid this fate is to avoid the conviction. The best way to do that is to hire a good attorney.

No lawyer can promise you a favorable outcome, but having one in a misdemeanor criminal case can bolster your chances. That's because in misdemeanor cases, unlike felony cases, you aren't automatically entitled to an attorney. That means if you don't seek your own, the court isn't going to assign you one and you'll be left to navigate the system on your own.

We're definitely in favor of a measure like this, which would reduce the amount of hassle a non-violent offender would face. The way it is now, a person arrested for urinating in public would be arrested, sent to jail and might have to wait there for several hours or possibly even several days before receiving a court hearing. Under the new measure, they'd pay a $35 fine and be released. If the person couldn't afford to pay the fine, they would be released to ensure there would be some measure of economic equity among defendants.

The council noted that if District officials adopt the proposal, police officers too would spend far less time and energy jailing people on minor nuisances that could easily be handled with a quick citation or summons.

The chances of this measure passing seem fair. You may recall two years ago that the council passed a measure repealing all criminal penalties for those nabbed driving with expired license plates that were more than a month overdue. The move came after two arrests made headlines: Including a mother with an infant in the back seat and another a Navy lieutenant commander who was detained for hours, locked in a jail cell, fingerprinted and photographed - because their tags had expired.

Continue reading "D.C. Misdemeanor Arrests Should Not Involve Jail Time, Group Says" »

Back in the spring of 1998, two young brothers, twins, were gearing up for graduation with political science degrees. They had plans to attend law school together, and from their go into practice with one another.

It was not to be.

Our D.C. criminal defense lawyers understand that the two were swept up in a wave of anti-drug sentiment, accompanied by harsh drug laws that unfairly targeted and punished young, minority males.

Their mother was recently profiled in The Washington Post for activism efforts to educate the community on unfair sentencing laws and other aspects of the D.C. criminal justice system.

It started when a nearby auto repair shop business owner had confessed to dealing drugs. He implicated the twins in a conspiracy plot that involved some 500 grams of crack cocaine and 10 kilos of the powder form of the drug.

U.S. Marshals arrived at the door of the home the two shared. The home was searched. There were no drugs. There was no money.

And yet, the two were convicted in a joint trial, with one receiving 15.5 years and the other receiving 19.5 years.

The drug dealer who had implicated them? The stiff anti-drug laws in the 1980s meant that his "substantial assistance" to the government in those cases meant he got a major break on his own sentence.

Laws governing the sentencing guidelines for crack cocaine crimes were handed down back when the crack epidemic was sweeping the country.

Despite the fact that these two were college-educated, had no criminal backgrounds, the evidence against them slim and the witness against them questionable, the minimum mandatory guidelines meant they would not walk out of prison in under 15 years.

There was a law passed in 1994 that would have allowed for significantly-reduced sentences for offenders who committed first-time crimes. However, that would have required that the brothers give information that was "complete and truthful," according to the government's definition. Problem was, the brothers had always maintained that the truth was, they were innocent.

The twins' mother decided she could not rest until wrongs like this were righted. Not only did she want her sons free, but she wanted to ensure such unfair sentencing wouldn't continue to hurt others in the future.

She told her story over and over again - with the Open Society Institute, the Justice Policy Alliance and the Sentencing Project. She joined Families Against Mandatory Minimums. She lobbied Congress for a change in the laws. She hosted her own online radio program from her kitchen, detailing all the injustices of the day stemming from minimum mandatory guidelines.

Then, in 2005, the U.S. Supreme Court ruled that federal judges should not be subjected to mandatory sentencing guidelines. Two years later, another legislative tweak in the law with regard to crack cocaine sentencing meant that her sons were able to have their sentenced reduced by 3 and 4 years respectively.

But it wasn't until 2010 that Congress passed the Fair Sentencing Act, which put sentencing for crack cocaine offenses more in line with others of equal caliber.

By that time, however, one of the twins was already at home and another was soon to arrive.

Now, the pair are working to rebuild their lives. They have found jobs. They are slowly trying to pick up the pieces.

Meanwhile, their mother continues their activism, refusing to shy away now that her sons have returned.

We applaud her continued dedication.

While the sentencing laws have changed dramatically, drug offenses still carry significant weight. Hiring an experienced lawyer is critical in these cases, where you could still potentially be facing years behind bars.

Continue reading "D.C. Drug Sentence Minimums Fought by Mom of Convicted Twins" »

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.

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" »

A long-running D.C. drug case involving a nightclub owner accused 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" »

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

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" »

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.

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.

Continue reading "Formal Review of D.C. Rape Case Handling Underway" »

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.

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" »

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.

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" »

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.

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" »

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.

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.

Continue reading "A Good D.C. Criminal Defense Can't Be Mounted Alone" »

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.

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.

Continue reading "Violent D.C. Hate Crimes Increasing, Report Indicates" »

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.

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.

Continue reading "D.C. Arrests Based on Racial Profiling Won't Stand Up in Court" »

D.C. criminal defense lawyers know it used to be that forensic evidence all but sealed the deal on convictions in criminal cases.

Particular credence is given to DNA evidence and blood testing results, which for years have been held up by prosecutors as proof positive of guilt.

Now, however, that facade of invincibility is cracking, as widespread errors in crime laboratories across the country reveal that forensic evidence is just as prone to human error as almost any other element in a case.

What's more, those errors illustrate not only the problems inherent in any one laboratory facility or by any one employee, but rather an overall lack of uniform regulation and oversight that might ensure an avoidance of such mistakes in other jurisdictions.

Most recently, there was the announcement by New York City's medical examiner regarding the review of hundreds of sexual assault cases in which critical DNA evidence was either missed or mishandled by at least one technician. So far, there is nothing to suggest that there were any wrongful convictions as a result of those tests. If anything, officials said, it seems rapists were able to evade detection due to a technician failing to uncover DNA profiles in clothing, hair and skin samples where they actually did exist. However, a wrongful conviction isn't out of the question, given the fact that the technician was employed for nine years and the office handles evidence relating to an estimated 1,500 rape cases each year.

She has since been fired.

So, too, has a lab technician from Massachusetts who reportedly submitted false positives in potentially thousands of drug tests in a wide range of criminal cases, from DUIs to homicides. She too was employed at the facility for nine years, and is believed to have personally been involved in testing for some 35,000 cases.

Just this month in Iowa, a technician was terminated after it was discovered that he erred in at least nine cases involving fingerprint analysis by mishandling the evidence. That employee had reportedly worked at the facility for about 15 years.

And in Minnesota, the crime lab for the St. Paul Police Department is seeking a new manager, after last year firing the old one and for a time shutting down the lab entirely amid allegations that thousands of drug convictions may have been secured with evidence processed by the lab's contaminated equipment and with procedures that lacked quality control.

In fact, not even the nation's top crime lab is immune from such troubles. Last year, the Washington Post uncovered and published evidence showing that false forensic hair samples and exaggerated testimony regarding those samples were used in tens of thousands of cases prosecuted prior to 2000. As a result, the U.S. Justice Department is in the midst of a massive review of more than 20,000 old cases, including many felony convictions.

This is not a situation of a few small but isolated errors. These are peoples lives, livelihoods and reputations that have been compromised or destroyed on the basis of bad science.

Still, prosecutors haven't given up their heavy reliance on this technology.

Given the inherent and industry-wide problems, it's critical for anyone accused of a crime that involves forensic analysis to secure the counsel of a defense attorney who is willing to aggressively challenge the results.

Continue reading "D.C. Criminal Defense Lawyers Talk Forensic Follies" »

In a case that D.C. criminal defense lawyers hail as a victory for civil liberties, a federal judge in New York has issued an injunction against the abusive application of a police practice called "stop-and-frisk."

While the judge did not go as far as to forbid the practice outright, she made it crystal clear that police could not conduct these searches absent the lawful standard required to prove reasonable suspicion for a stop.

The case stemmed from the Trespass Affidavit Program, or TAP, established in the Bronx neighborhood of New York, as well as in numerous cities and precincts across the country. The program was founded back in the early 1990s in New York, when police started to crack down on street corner drug deals. As a result, dealers started moving their operations indoors, on private property where they may or may not have had a right to be. The NYPD began to lobby for more control to go after these individuals, and as a result, Operation Clean Halls was born. It was intended to be a short-term solution that involved landlords signing agreements to allow police to enter their property at will if there was suspicion that individuals were trespassing. The operation was extended and eventually morphed into the longer-term TAP, sometimes also referred to as "stop-and-frisk," which was then copied by other law enforcement agencies.

D.C. doesn't specifically have such a program, but the ruling of this judge is nonetheless relevant here because of the way in which officers were reportedly abusing their power.

You see, even under TAP, police setting out to stop a person on suspicion of a crime - be it trespassing or anything else - still must abide by a precedent set in 1968 by the U.S. Supreme Court decision in Terry v. Ohio. . The court ruled in that case that police can't stop and detain someone for investigatory purposes unless they have a specific and articulable suspicion that the person is engaged in criminal activity. In stops that don't constitute friendly encounters, where police can simply approach and ask you to voluntarily speak to them, it's called a "Terry stop." If a Terry stop conducted absent that reasonable suspicion, it's a violation of a defendant's Fourth Amendment right to be protected against illegal searches and seizures.

So that brings us to what was reportedly happening in the Bronx, according to numerous civil lawsuits filed against the agency. People - disproportionately poor, black people - were routinely being detained and arrested in front of TAP buildings, mostly for suspicion of trespassing. This was happening even when the suspects weren't in the building and even when the officer clearly had no reasonable suspicion that the individuals in question were committing any crimes.

For example, one woman suing indicates that her teenage son was stopped and arrested for trespassing while returning home from the store where he had gone out to buy ketchup for dinner. In another case, a middle-aged, off-duty security guard was leaving a TAP building after visiting his girlfriend. He was handcuffed, taken to police headquarters, strip-searched and interrogated by hostile officers, accusing him of being a drug user.

The federal judge in this case noted that internal police records show that out of the nearly 1,665 stops made outside a single TAP building in 2011, two-thirds lacked any justification at all that would have established the minimum requirements of reasonable suspicion. What's more, the local district attorney usually declined to prosecute these arrests. Even those cases that did go to court were regularly dismissed by judges, citing the lack of probable cause.

Continue reading "Federal Judge Bars "Stop-and-Frisk" Arrest Without Reasonable Suspicion" »