Here is my investigator Wayne Marshall standing in my “corner office with a window” in the D.C. Superior Court cafeteria. I can’t believe the receptionist let him through without an appointment.
We are currently in trial which explains the tie. (He says his wife picked it out for him.) Most people here would hardly recognize him without his New York Giants hat.
Mark Houldin has accepted a job with the National Legal Aid and Defender Association(NLADA). NLADA is the nation’s oldest and largest non-profit association “devoted to excellence in the delivery of legal services to those who cannot afford counsel.” Moving last month from Philadelphia to D.C., Houldin will be working in the Defender Legal Services Department. According to a NLADA press release, he will be responsible for “advancing policy issues of import to the indigent defense community and advancing the equal justice agenda through the development and dissemination of research and information.”
Houldin was a classmate of mine in law school. He was a fellow summer intern at the Philadelphia public defender’s office and then a colleague and office mate. He and his wife Jady are also friends, and my wife and I treated them to dinner last night at The Source, just across C Street from D.C. Superior Court.
If there is one thing I have always admired about Houldin, it is that he is at once humble and extremely good at what he does. In addition, although he stayed at the defender’s office a year or two longer than I, he has not lost any of his passion for indigent defense. He does not have that beaten down look you see in so many public defenders. NLADA is fortunate to have him.
Guest Post by Emma Brush
A visit to Arlington was the occasion for this undeserved opportunity of mine to post. Originally, my Uncle Jamie had a jury trial scheduled. Knowing that I was considering law school, he thought it would be fun for me to see.
Unfortunately, the court date was postponed. Fortunately, he had a juvenile case that was also going to court later that week. Unfortunately, his client would decide to plead guilty so it would be a short day in court. Fortunately, I still got to see my uncle in action.
First came a stern side of his I’ve rarely seen, except perhaps when someone gets distracted during a hand of hearts and he needs to keep the game moving. Jamie’s client was to arrive in court at 9 a.m., but come 9:15, he and his mother had still not arrived. Getting a little nervous, Uncle Jamie was in and out of the courtroom trying to delay so as not to irritate the judge. When they finally arrived, he hustled them through the door, firmly reminding them that it was very important to be on time, especially with this particular judge.
This business-like demeanor soon softened, however. When the judge set the time for the trial, we had about an hour to wait, so Jamie told his client he could go to the cafeteria. His client (a rather adorable and skinny fourteen-year-old boy) turned to his mother and asked for some money for food. His mother shook her head, telling him she didn’t have any, at which point it seemed Jamie could not resist and self-consciously handed him some.
The two of us decided that we would also head down to the cafeteria so that Jamie could explain some of the case particulars he kept in a thick binder. He was still unsure if a key but uncooperative witness was going to show up, so we took the long way down to scope out the hallway scene. We did not find the witness, but we did run into about ten of my uncle’s colleagues. Each of them had some private business to relate, some of which I was privy to, but my favorite part was just that everyone seemed to like him so much. I was reminded of stories my mom told me about Jamie as a high schooler, as a football player. I think he might be embarrassed by it now, but I love the idea of my smart and gentle uncle as a tough, cool kid.
Our witness did eventually show up, but to our disadvantage as it turned out. After his arrival, my uncle’s client suddenly expressed an urgent desire to plead guilty. My uncle and his investigator Wayne tried everything to make him see that we had a case, that pleading not guilty would not worsen his punishment were he given one, that we might as well give it a shot. But he was just fourteen and had other pressures weighing on him. I felt the frustration of my uncle’s job—of fighting for people who don’t have to and often won’t take his advice, for people who may be have been dealt a tougher hand with limited and fleeting power to affect their lives.
And yet, my uncle did not seem disheartened. The day in court animated him. He was mildly irritated that he had put in weeks of work preparing for the case, but this quickly passed because he knew he had done what he could. More importantly, the sentence was not severe for his client—probation, drug testing, community service and a curfew. What was more, since the day of the offense, his client had been “doing well,” as my uncle kept reminding him, getting good grades and staying out of trouble. My uncle thought he would be okay. He respected him, I think, this young kid who seemed to be the leader of an older crowd.
After the guilty plea was entered, the day ended rather anticlimactically. The client and his mother left without much of a good bye or really much acknowledgement of us. Afterwards, my uncle and I talked a little bit about what could have been, but then we moved on to other topics. I wonder what he did with his big and intricate binder of notes.
I am watching what has to be the best cross-examination at a probable cause hearing I have ever seen. It is a new attorney from the Public Defender Service (PDS), someone I have never seen before, and he is handling the cross-examination like he is Irving Younger.
He is pleasant but firm. He moves methodically through the facts, pinning the police officer down on each point with remarkable precision before circling around again for more detail. It is not until he is finished with the cross that you realize he has not drawn a single objection, much less had one sustained, even though he has gotten everything he wanted. Maybe it is because he did it all so quickly and with such ease that the prosecutor did not have time to object.
Now I know how other professional golfers must have felt at the time Tiger Woods came onto the pro circuit. You could be resentful. Or you can just sit back and appreciate the talent.
Although the spectacle left me feeling completely inadequate (why can’t I do a cross like that?), I felt better when I found out who this new public defender is. He is Andrew Crespo, the first Latino president of the Harvard Law Review and former U.S. Supreme Court clerk, and I hear that he is also astounding judges and baffling prosecutors with his 80-page motions on fairly routine matters. “Yeah,” a colleague told me the other day, “the prosecutors really hate him.”
You know that Crespo will soon be moving onto other things. It is not just that public defenders transition to adult court after an initial 6-month rotation with the juvenile unit. It is that, more generally, you get the sense that Crespo is destined for greater things. After all, the last “first” president of the Harvard Law Review – in that case, the first African American president of the Review – is now President of the United States.
You also have to admire Crespo for starting out his career as a criminal defense attorney – and a public defender at that. There could not have been many of his classmates at Harvard who were talking about this line of work.
Anyone who has worked as a public defender or accepted court-appointed cases has had a client who didn’t fully appreciate the lawyer’s many talents. My brother-in-law, a former Assistant U.S. Attorney in D.C., tells of his dismay while watching a criminal defense attorney he very much admired being dressed down by an angry and ungrateful client. This was after the lawyer put on what my brother-in-law thought was a masterful — but ultimately unsuccessful– defense.
I can only imagine the looks of surprise in the courtroom the first time a criminal defendant decides to fire Andrew Crespo.
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Seth Godin writes about a friend of his, a middle school teacher, who avoided the teacher’s lounge because “he couldn’t bear the badmouthing of students, the whining and the blaming”:
Just about every organization, every on-line service, every product and every element of our culture now has chat rooms and forums devoted to a few people looking for something to complain about. Some of them even do it on television.
The fascinating truth is this: the people in these forums aren’t doing their best work. They rarely identify useful feedback or pinpoint elements that can be changed productively either. In fact, if you solved whatever problem they’re whining about, they wouldn’t become enthusiastic contributors. No, they’re just wallowing in the negative ions, enjoying the support of a few others as they dish about what’s holding them back.
It pays no dividends to go looking for useful insight from these folks. Go make something great instead.
It is hard to argue with Godin on this. Who wouldn’t agree that, in order to remain happy and productive, we should focus on the positive things in life?
Upon starting work as a public defender in Philadelphia, I was taken aback by how disdainful some of my colleagues seemed to be of our clients. There was one lawyer in particular who showed up during our training to regale us with her stories. Every judge, every prosecutor, and every client was a complete idiot. She was the only sane and reasonable person in the courtroom.
At the same time, I began to have a better appreciation for this dynamic after I had worked there for a while. We are social beings, and we work in a high-stress profession. With the defender’s office experiencing at least one lawyer breakdown a year, you have to wonder if some of the meltdowns might have been avoided had the lawyers been better able to vent pent-up anger and anxiety. It is reassuring to know that other people share the same frustrations that we do.
During my first career, I used a technique I called “constructive venting.” I had a few hotheads on my staff. I insisted that they come to see me before they sent out an angry email or did something else they would later regret. Although my father’s idea of assigning “mental demerits” to offenders never quite took hold, we would sit down and talk about the problem, trying to see the humor in things. The idea was to get the poison out of their system. They were then to move on.
Without the benefit of a built-in social network, it is harder to engage in constructive venting as a solo practitioner. Other lawyers don’t know your clients, and they don’t want to hear your complaints anyway, just as you don’t want to hear theirs. As a result, the person who remains my greatest lifeline to sanity when it comes to the pressures of work is my investigator, Wayne.
Wayne and I chat regularly by phone, usually in the late afternoon. My son tells me he always knows when it is Wayne on the phone by the relaxed tone in my voice.
Wayne and I talk about family and sports. We also strategize about our cases. If we have a difficult situation or difficult client, we will talk about it, usually finding some humor in the situation to keep things in perspective. And I can do this with Wayne not only because he is the only person who actually knows what I am talking about but also because I know that he shares my affection and commitment to the very people we are discussing. It is like dealing with siblings. They can get away with saying things about your parents you would never tolerate from anyone else.
If, as in Godin’s example, teachers have it rough, so do lawyers. Godin can serve as an inspiration during my good days. On my bad days, I have Wayne.
Photo by Zoe Tillman
Judge Kimberley Knowles was sworn in as a D.C. Superior Court Associate Judge on Friday. Confirmed by the Senate on August 2, Judge Knowles had previously served as a magistrate judge, sitting most recently in Room 116 where she presided over drinking-and-driving cases.
According to Zoe Tillman of the Blog of Legal Times, Superior Court Chief Judge Lee Satterfield, D.C. Court of Appeals Chief Judge Eric Washington, and Holland & Knight partner Bill Gould all spoke at the ceremony. Satterfield announced that Knowles will be serving in Family Court: “A lot of good things will happen to the young people in her courtroom.”
Judge Washington, for whom Knowles clerked right out of law school, noted that Knowles was always “infinitely prepared for every situation.” Bill Gould (also my brother-in-law) echoed Judge Washington’s theme of preparedness when describing Judge Knowles. Citing her “almost pathological preparedness,” Gould said that “there will be no judge in any courtroom that will be more prepared and confident and comfortable” in making decisions that will have such an important impact on people’s lives.
Here are 15 reasons I prefer D.C. Superior Court to the Criminal Justice Center in Philadelphia:
She doesn’t know it yet but Mindy Daniels is going to be my mentor on all things having to do with the D.C. Court of Appeals.
One of the first things I do whenever I start out in a new jurisdiction is to decide which lawyers I admire most. I then glom onto them. I usually pick a handful of different lawyers. That way I don’t burden any one lawyer with too many questions.
I came upon Mindy Daniels through another lawyer I also admire: Howard Margulies of D.C. Superior Court. I was working on my first brief for the Court of Appeals and asked Margulies if he had a sample brief he could share with me. He sent me two briefs that Daniels had written four or five years ago.
Daniels does not write appellate briefs the way we were taught in law school. The law is integrated into the argument so seamlessly that you hardly realize you are reading a legal brief. I decided after reading the first couple of pages that I was going to have to meet her. At the same time, because the briefs Margulies sent me were so dated, I didn’t even know if she was still practicing in the jurisdiction.
Daniels and I meet at Franklin’s Restaurant, Brewery and General Store in Hyattsville. She is roughly my age and physically smaller than you might expect in an appellate lawyer with her clout. She is also thin, attractive, and very lively.
Daniels is probably most famous in D.C. for the work she has done on behalf of the lesbian, gay, bi-sexual, and transgender (LGBT) community, and we talk some about that. Moving down from New York to the District in 1976, she got her law degree from George Washington University in 1983 and almost immediately began applying her skills to the social issues that concerned her: the homeless, establishing a halfway house for women as an alternative to incarceration, and then LGBT rights. For example, she led the effort to obtain domestic partnership rights in the District, sodomy law reform, and helped write the Bias-Related Crimes Act. In 2009, she served as the organizer for transgender issues in the State of Maryland, making efforts to include transgender persons in human rights laws.
We cover the ins and outs of appellate practice in the District. Two hours later, we walk out onto the sidewalk in front of Franklin’s, and I ask for her permission to blog about our lunch. She smiles reluctantly but agrees. Then she says what I have been hoping for all along: I should call her with any questions about appellate practice. I can’t remember if the word “mentor” actually passed her lips. Until she tells me otherwise, I have decided that it did.
Mia Roberts, now at Friedman Schuman
It is January, the beginning of the spring semester, and D.C. law students are back in court. There is the Juvenile Justice Clinic and the Prettyman Fellowship program, both programs run out of Georgetown. There is also the D.C. Law Students in Court internship that draws on law students from American, Catholic, Georgetown, George Washington, and Howard universities.
Given the stakes involved, you might wonder how smart it is to have criminal defendants represented by mere law students. Based on my (admittedly limited) observations, the clients seem to be well-represented. The students are smart and prepared. They are knowledgeable about criminal law and procedure, and, developing a certain rapport with their clients, they argue forcefully for their clients’ interests as if their own lives depended on the outcome. Most importantly, they are supervised by an experienced attorney – a Kris Henning or a Texas Morris, for example — who will step in as necessary. In short, clients get the legal expertise of a proven practitioner supported by the boundless energy and enthusiasm of a law student. I also imagine that, if in doubt, most judges will cut the law students and their clients a break.
I have also enjoyed serving as co-counsel with D.C. law students in multi-defendant cases. Doing their own investigations, the students are completely on top of the case. They enjoy talking through legal theories and strategies. And, perhaps most importantly, they return phone calls.
I still remember my own experience as a clinical intern with the public defender’s office in Philadelphia during my third year in law school. One of my classmates, Mia Roberts, was a young-looking woman who stood 5 feet tall in heels. You should have seen the condescending smile on the police officer’s face when she stood up – barely visible over the lecturn – to cross-examine him. What the officer did not know was that Roberts was the star of our law school’s trial team and the recipient of multiple national awards for trial advocacy going back to high school. He was not smiling for very long.
I just made my first appearance in front of Judge Diana Epps in Room 116. She took over the DUI calendar for D.C. Superior Court last month after Judge Knowles was sworn in as associate judge.
Based on my experience with Judge Epps through probable cause hearings in JM-15, she seems to be genuinely sympathetic to many of the issues confronting defendants. As a former prosecutor, she can also be expected to hold the government accountable for making its case. Tom Key, for example, just won an acquittal on the basis of a Jencks violation. (The officer claimed to have written his notes on his hand. He then washed that hand.) Defense lawyers will now have to decide whether or not to take their chances in front of her or to ask for an associate judge at trial.
Born and raised in Washington State, Judge Epps graduated from Cornell University and received her law degree from the State University of New York at Buffalo. She clerked for the New York State Fourth Appellate Division in Rochester, New York, before moving to the District to accept a job with the D.C. Office of the Corporation Counsel. While working in the Juvenile Division, she volunteered as a mentor-tutor to local high school students. She also served on a city wide-multi-agency committee whose goal was to design and develop alternative community-based programs for juvenile offenders.
Judge Epps joined the United States Attorney’s Office for the District of Columbia in 1991, prosecuting cases in both D.C. Superior Court and the U.S. District Court for D.C. She was appointed D.C. Superior Court Magistrate Judge in 2003.
Last September I wrote about Dana Tapper, a third-year law student at UVA who interned last summer with the Juvenile Services Program of the D.C. Public Defender Service.
Apparently I was not the only person to be impressed by Dana. She was featured last week on the Ellen DeGeneres show, where DeGeneres presented her with $10,000 in cash from Shutterfly, and then a check for another $10,000, for her work with children. The purpose of the money was to help Dana pay for this summer’s Bar exam and to defray other expenses.
The Public Defender Service (PDS) has just begun a blog — the PDS Criminal Law Blog — that reviews recent D.C. Court of Appeals opinions. With Samia Fam, Nancy Glass, Jackie Frankfurt, and a handful of other public defenders sharing responsibility for the writing, the blog will certainly have some heavy hitters behind it. The most recent entry covers Vines v. United States, a July 2013 opinion dealing with whether or not two counts of malicious destruction of property merge. This is yet another example of PDS supporting the legal community in D.C.
Occasionally you have a judge who tells it like it is.
I am standing at the bar of the court. My client has successfully completed a diversion program. The clerk calls our case 15 minutes early, before my client has arrived in the courtroom, so I offer to waive my client’s presence. We need two simple words from the government – “case dismissed” – so that we can all get on with our business.
The judge is a kindly older man with white hair and a beard and a very good sense of humor. He is respectful towards everyone in the courtroom, including the accused. And he is friendly now to the two prosecutors standing in front of him at the other table. I know this is not my decision, he says. But do we really need to have the defendant standing here for the four seconds it will take to dismiss these charges?
Although this is exactly what everyone else in the courtroom has been thinking, it is gratifying to hear the judge himself actually say the words. Those of us who do this every day can get so wrapped up in ourselves that we can sometimes forget how ridiculous things must seem to people on the outside.
There are two Assistant U.S. Attorneys standing at the other table. They are both junior. This is part of the problem. Because the prosecutors rotate so quickly out of misdemeanors, you never deal with the same prosecutor on any case that takes over 6 months to resolve. If the odds of getting one prosecutor to return your emails or phone calls on a minor misdemeanor are slim to begin with, they are virtually non-existent when it comes to communicating with two different prosecutors. And that is assuming you can even figure out who the second prosecutor is. There used to be a number you could call. That number now goes directly to voice mail.
The other part of the problem is that junior prosecutors are too insecure to deviate from office policy even when that would be the common sense thing to do. They are afraid of getting themselves into trouble.
Both prosecutors look down at the file in front of them as if they are going to find the answer there. We need to have the defendant here, one of them says finally, before we can dismiss the charges.
The judge shrugs his shoulders and smiles. Well then, he says to me, I guess we will just have to pass the case.
The list is finally out.
D.C. Superior Court Judge Robert Morin announced last fall that the panel of attorneys who are approved to represent indigent criminal defendants would be reconstituted. Everyone was required to re-apply. And, with the number of criminal cases down 25% since 2008, Judge Morin warned that there would be major cuts.
Sure enough, in a report to Chief Judge Lee Satterfield that was made public yesterday, the Criminal Justice Act (CJA) Panel Implementation Committee recommended a list of 200 attorneys for the full panel and an additional 17 lawyers as “provisional members.” This is down from 309 attorneys who were on the panel last fall. Wrote the Committee:
Over the past few years . . . , while the number of attorneys on the Panel has remained relatively constant, or increased to some extent, there has been a steady decrease in the number of criminal cases filed. . . In addition, as a result of the Community Court Expansion Program in 2010 many more misdemeanor cases are eligible for diversion, reducing the need for attorney time for those cases. Because of these and other reasons, on any given day, a significant number of Panel attorneys do not receive any appointments, even though they are available to serve, or receive an insufficient number of cases. In the Committee’s view, it is optimal that there be a balance to ensure both that there are enough Panel members available to meet the Court’s need for highly competent counsel for all defendants, and that there are a sufficient number of cases for each attorney in order to make efficient use of an attorney’s time.
Here is the list of attorneys that Chief Judge Satterfield approved yesterday:
Full Panel Member
Sabitiju Abou
Atiq R. Ahmed
David H. Akulian
Khadijah R. Ali
Charles R. Allen
Elita C. Amato
Andrea Antonelli
Colleen S. Archer
Kenneth Auerbach
Mitchell Baer
Todd S. Baldwin
Betty M. Ballester
Gregg D. Baron
Donna Beasley
Joseph J. Bernard
Thecla Bethel
Abraham Blitzer
Samuel A. Bogash
Ferris R. Bond
Bryan T. Bookhard
Susan E. Borecki
Dennis R. Braddock
Stephen F. Brennwald
Bryan W. Brown
Michael P. Bruckheim
Sharon L. Burka
Charles Burnham
Anthony Cade
Joseph P. Caleb
Cory L. Carlyle
John J. Carney
Veta M. Carney
Damon Catacalos
Jason Clark
Noah Clements
Cary Clennon
Brett E. Cohen
James D. Colt
Jennifer Connor
Bruce M. Cooper
Peter A. Cooper
Gregory Copeland
Gregory A. Cotter
Bernard F. Crane
Patricia Ann Cresta-Savage
David Cumberbatch
Daniel Daly
Frances M. D’Antuono
Joel R. Davidson
Daniel K. Dorsey
April L. Downs
John Duru
Colin Dunham
Donald L. Dworsky
Susan D. Ellis
Thomas D. Engle
Henry A. Escoto
Ferguson Evans
Oluwole O. Falodun
Sean J. Farrelly
Robert P. Feeney
Gretchen Franklin
David L. Frecker
Cherlyn Freeman-Watkins
Edward Gain
Gregory W. Gardner
Grey A. Gardner
Richard K. Gilbert
Mark Goldstone
Christopher Gowen
Russell J. Hairston
Kiumars Hakimzadeh
Marie E. Haldane
Brandi J. Harden
Daniel J. Harn
John T. Harvey
Shawn A. Heller
Gloria D. Henderson
Matthew R. Hertz
Thomas T. Heslep
Grandison E. Hill
Richard E. Holliday
Veronice A. Holt
Linda M. Houston
Adam R. Hunter
Aminata Ipyana
Kevin D. Irving
Frederick D. Iverson
Tammy S. Jacques
Carlotta P. Jarvis
Chantal Jean-Baptiste
Theresa Y. Jenkins
Stephanie L. Johnson
Stuart Johnson
Dorsey G. Jones
Joseph Jorgens
Edward D. Joseph
Quo Mieko S. Judkins
Louis Kamara
Cynthia Katkish
Thomas Key
M. Azhar Khan
Tony Khater
Steven R. Kiersch
Marnitta L. King
Teresa G. Kleiman
Sara E. Kopecki
Isaac K. Kunnirickal
Geralyn R. Lawrence
Thomas E. Lester
Richard Lewis
Shai A. Littlejohn
John L. Machado
T. Gail Maddox-Levine
Shridevi Madhure
Lloyd A. Malech
James T. Maloney
Randy E. McDonald
Howard X. McEachern
Kyle A. McGonigal
Kristin L. McGough
Rufus William McKinney, Jr.
Cedric D. Miller
Karen L. Minor
Joseph A. Molina
Craig N. Moore
Kevin Louis Mosley
Charles P. Murdter
Jay P. Mykytiuk
Sean B. Murphy
Kelli Neptune
Patricia Newton
Lauckland A. Nicholas
Archie M. Nichols
Adgie O’Bryant, Jr.
Chidi A. Ogolo
Justin A. Okezie
Kevin Oliver
Chiemeka C. Opaigbeogu
June Perrone
Kimberly J. Phillips
Heather Pinckney
Steven G. Polin
Clarence K. Powell
Aaron E. Price
Elliott Queen
Daniel W. Quillin
Angela T. Ramsay
Chantaye Redmond-Reid
Janai C. Reed
Ravi Regunathan
David Richter
Stephen W. Riddell
Matthew C. Rist
Kevin C. Robertson
Ralph D. Robinson
Mark M. Rollins
Martin W. Rosendorf
Stephen O. Russell
James Rudasill
John Sample
Lisbeth Sapirstein
Anna B. Scanlon
Seth L. Schraeger
Corinne Schultz
Errin R. Scialpi
Joseph A. Scrofano
Miguel A. Serrano
Heather Shaner
Gilda L. Sherrod-Ali
David A. Sidbury
Paul A. Signet
Joanne D. Slaight
Anthony E. Smith
Jerry R. Smith
Lee A. Smith
Alan S. Solomon
Patrice A. Sulton
Van Teasley
Alvin H. Thomas
Everald F. Thompson
Reginald M. Towe
Courtney M. Vaughn
David Vega
Charles M. Wall
Anne Keith Walton
Sharon M. Weathers
Carrie A. Weletz
Elizabeth J. Weller
Ian A. Williams
James Williams
Kanita Williams
Larry D. Williams
McGennis Williams
Jonathan P. Willmott
Winston Yallery-Arthur
Bruce I. Yamashita
Lola M. Ziadie
Jonathan Zucker
Provisional Members
Margaret M. Cassidy
Jack Gilmore
Paolo A. Gnocchi
Richard Goemann
Richard P. Goldberg
Joseph E. McCoy
Caleb C. Medearis
Christopher J. Mutimer
Steven J. Ogilvie
Matthew J. Peed
Christine R. Pembroke
Kelsey D. Phipps
Rupa Puttagunta
Donna L. Scott
Gemma M. Stevens
Jacqueline R. Williams
Nicole D. Zahara
One of the hazards of public interest work is that it seems to contribute to smugness. I may be underpaid and overworked. But at least I am doing the Lord’s work. And that work is more important than anything my higher paid colleagues with more prestigious jobs are doing.
I encountered a little bit of this phenomenon during my three years with the public defender’s office in Philadelphia. Accompanied by a certain world-weariness (and absolutely no sense of humor at all), the form the phenomenon took there was a degree of competitiveness; as in, I am more committed to the defense of our indigent clients than you are.
One exception to this phenomenon in Philly was someone who had more reason to feel superior than most people. This was the head of the appeals unit, Karl Baker. I remember walking into his office, crestfallen because I thought I had just committed some grievous error on behalf of a client that could never be rectified. There were no recriminations or judgments from Baker. Instead, he went immediately to the solution. And, fortunately for my client, it turns out that there was one.
The odd mixture of smugness and competitiveness that you find in many people working in public interest jobs is not something that seems to afflict the attorneys who work for the Public Defender Service (PDS). Their attitude, instead, is one of openness and cooperation: Let’s work together. Let’s challenge each other. Let’s learn from each other so that we can all provide the best possible defense for our clients.
And there is no better example of this than former PDS attorney Alec Karakatsanis. Karakatsanis is a helluva lot smarter than most of the rest of us. However, like Karl Baker in Philadelphia, he doesn’t seem to care if we know this or not.
Karakatsanis graduated from Yale in 2005 and from Harvard Law School three years later. Karakatsanis worked as a federal public defender in Alabama before joining PDS. At PDS, Karakatsanis worked in the Special Litigation Division where he litigated more complicated cases in D.C. and federal court. Because he also served as a valuable resource for solo practitioners like myself, I was very sorry to call over there a couple of months ago only to be told that he had left PDS.
Karakatsanis has a certain intensity about him without all the stuff that normally accompanies that intensity. And, because he is absolutely committed to the effective representation of indigent defendants nationwide, he recently left PDS to set up, along with his friend and former classmate Phil Telfeyan, a non-profit organization called Equal Justice Under Law.
At first glance, it is difficult to figure out what this new organization is planning to accomplish. For one thing, not surprising for a new enterprise, the organization’s website is difficult to find, even when you google its name in combination with Karakatsanis’. And the mission statement included on the website does not provide much help:
Equal Justice Under Law is dedicated to promoting a society in which all human beings can flourish by ensuring that the legal system protects the important principles of human and civil rights, equality, and fairness. We fight the inequalities that continue to permeate both our legal system and our society as a whole.
Although the words “Equal Justice Under Law” are etched into the façade of white marble above the United States Supreme Court, too often our legal system falls woefully short of its lofty goals, especially for people living in poverty. Our modern legal system is characterized by violations of basic human and civil rights on a massive scale. Many of these violations have become such regular features of every-day life and legal practice that they are barely noticed. The result is the subtle economic and cultural normalization of abuses that should shock us to the core.
Equal Justice Under Law provides pro bono legal services to those most in need, focusing on the systemic issues that create unjustifiable inequalities. We bring cases across the United States, engaging in litigation and advocacy to reform the structures, norms, and incentives that create and perpetuate violations of fundamental rights.
But you get a better sense of the organization by looking at its two initial lawsuits, the first a class action lawsuit challenging Alabama’s debtor prisons and the other a challenge to Alabama’s sexual offender laws. With respect to the prisons, for example, Karakatsanis’ new organization had conducted an extensive investigation before bringing suit into what it believed was “the rise of modern-day debtors prisons.” Equal Justice Under Law obtained a preliminary injunction on May 1, 2014, barring the city from jailing three of its clients who were at imminent risk of being jailed. After the order, the city released dozens of inmates from a local jail who had been too poor to pay traffic fines. It also terminated its contract with the private company to which it had previously outsourced and privatized its probation system.
Although I have never met Tefelyan, Karakatsanis has his eye on the ball. And, although I have a sneaking suspicion that he is going to be really annoyed by the focus on the personal in this blog entry, I wish him and his new organization a lot of luck.
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She is assertive without being aggressive. She knows when to push and when to hang back. She is pleasant and well-spoken. She does her homework. She is committed to her clients while keeping a sense of humor. As an avid student of the law, she is always ready to talk things through with you. She is smart in a way I never will be. And I am watching her eviscerate the government’s lawyer at a hearing at which she has raised multiple Brady and other issues.
“Well, if you put it that way,” the prosecutor says grudgingly at one point in response to one of her arguments, and I have to hide a smile. This is a complete concession, the government throwing up its hands in surrender, because this is precisely the way Phillips has put it.
You work hard. You prepare. You learn the law. You work on your trial skills. But no matter what kind of lawyer you want to be, no matter how good a lawyer you think you may already be, sometimes you just have to sit back in the gallery and admire.
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Happy Birthday to Gideon: On the Arrogance of Public Defenders
I am a fan of D.C. criminal defense attorney James Colt. It is not only his name, which sounds like it was pulled from a Harlequin romance. It is also that he is a pleasant guy and, from what I can tell, a very good lawyer.
Now there is this: I am standing by the clerk’s desk in the courtroom when Colt’s case is called and Colt approaches counsel table with his client, who turns out to be Chinese. The clerk massacres the guy’s name. Colt gets it right. There is some back-and-forth with the judge before the client decides he has a question. The judge turns the husher on and Colt slips into what sounds like flawless Chinese while whispering with his client.
Watching this reminded me of a Saturday Night Live routine during the Reagan years. Reagan is portrayed in the bit as a kindly but doddering old fool as he interacts with a group of school children visiting the White House. As soon as the children leave the room, Reagan transforms instantly into an energetic dynamo, barking orders to his staff as he directs troop movements across a large map. Get me German Chancellor Helmut Schmidt on the phone, he tells his staff, and then slips into fluent German. Reagan reverts back to the genial old fool the moment another member of the public enters the room.
I tell you, James Colt is Superman.
“I can get you a good deal because I know all the prosecutors.”
This is what one of my competitors says to a potential client. I know this because the client tells me. She wants to know if I can get the same results for her.
There are three things wrong with this statement.
First, by suggesting prosecutors will offer better deals to their friends in the defense community, it brings the system into disrepute. It might also violate D.C. Rule of Professional Conduct 8.4(e) which makes it professional misconduct to “[s]tate or imply an ability to influence improperly a government agency or official.”
Second, and more practically, the statement ignores the reality of a large and fluid prosecutor’s office such as the U.S. Attorney’s Office in D.C. When I was a public defender in Philadelphia, 18 out of the 20 prosecutors starting out at the same time as I was had gone to law school with me. We went through the same rotations at the same time, appearing against each other again and again. So, yes, we got to know each other pretty damn well.
It was the same thing when I practiced in Virginia. Every case I ever tried in Prince William County, for example, was against the very same prosecutor – the now infamous Claiborne Richardson.
But it is different in D.C. where prosecutors rotate so quickly – from misdemeanors to felonies, from D.C. Superior Court to U.S. District Court, from the trial division to appeals. Almost every case I have ever had in adult court (and there have been many) has been against a different prosecutor.
Finally, the statement seems to assume that, even if the defense attorney did in fact know all the prosecutors, the client would want someone who is buddy-buddy with the same group of people trying to put her behind bars. Mark Bennett has written about this extensively. Most recently, there was this:
The lawyer who intimates that his relationship with the prosecutor will get a better result should, like the lawyer who intimates that he can bribe the judge, be avoided at all costs. As I’ve noted before, when the lawyer’s long-term relationship with the prosecutor is placed in tension with her short-term relationship with the client, it is not the former that will suffer.
Bennett concludes:
We all have insider connections. We all have friends in the DA’s Office and on the bench. The lawyer who is marketing himself based on those connections has got nothing real to sell.
Sour. Unprofessional. And extraordinarily slow at everything she does.
That is my assessment of the woman who sits at the reception desk on the 10th floor of the Office of the Attorney General. She reminds me of everything I didn’t like when I worked for the federal government many years ago.
I complain about the receptionist to one of the prosecutors I meet in the elevator on my way out of the building. The prosecutor laughs. “Looks like someone got up on the wrong side of the bed this morning,” she tells me.
Maybe so. But it is true. A woman like this receptionist would not last 5 minutes in a private organization. All you have to do is compare her to the people who staff the reception desk at my office. And that is what bothers me about the government: There are far too many people who are unhappy with their jobs and who are taking this out on the world around them.
This is not good for the organization. It is not good for a member of the public who visits that organization. And it is not good for the employee him- or herself. Who could possibly take pride in behavior like that?
Job security is not always such a good thing.
Normally I would hold the woman’s behavior against the people who run that office. After all, aren’t they responsible for assuring that their employees perform their duties? But I have been a government manager. I know the challenges they face. Early on in my career, I wanted to get rid of an underperforming administrative person. Forget it, people told me. Use your time in government to achieve something positive. Don’t wrap yourself up in knots trying to circumvent all the protections accorded to civil servants. So that is what I did. The person is probably still working for the government. But he is someone else’s problem now.
Many years ago, when my wife was changing jobs, I brought her former secretary Judy into federal government. Judy was everything you would ever want in an administrative person. But despite the pay, benefits, and job security, Judy had a rough time of it. For one thing, she antagonized all the other support personel by raising the bar as to what could be accomplished in a day.
One time, when Judy was putting together something we needed for an important meeting the next day, we were missing some of the supplies she needed. So she went to the local Staples late at night and bought everything she needed using her own money. As a result, everything was ready and waiting for us when we arrived the next morning.
Judy didn’t expect to be reimbursed for the money she laid out. She didn’t even expect to be thanked. But what surprised her was the criticism. The head of our operations office was furious when she found out about Judy’s trip to Staples. Instead of thanking Judy for her hard work and initiative, she brought Judy into her office and accused her of committing a crime – if I recall correctly, some prohibition against supplementing federal appropriations or something. Judy lasted less than a year before she accepted another job back in the private sector. I was very sorry – but not surprised – to see her go.
The problem with complaining about anybody – especially in a public forum such as this blog – is that the person you complain about will usually make you regret it. For instance, have you ever seen me complaining about a court clerk here? After all, I am no idiot. But I needn’t worry about the receptionist at the prosecutor’s office punishing me. She couldn’t possibly make my interactions with that office any more painful than they already are.
I will not take cases away from the Public Defender Service. How can I take someone’s money when that person is already getting top-notch legal representation for free? I am trying to make a living. But I also have to live with myself.
The other day, for example, I got a call from someone seeking to appeal a recent conviction. This is good; I have been trying to expand my practice before the D.C. Court of Appeals. But then I found out that the person had been represented at trial by PDS. Stick with PDS, I told the person. They have the resources. And their appellate unit has some of the best legal minds in the city.
Alas, I can’t say the same thing about some of the court-appointed lawyers practicing in D.C. Superior Court. Many of these lawyers are first-rate: smart, committed and creative in their defense of the city’s indigent. Many are also my friends. But there are still exceptions, even after the panel was completely re-vamped – and winnowed down – last year.
My favorite story is the one in which I had to introduce my co-counsel to his client on the day of trial. I am looking for my client, the lawyer told me. He is the guy sitting next to you, I replied. But the complaint I hear most often is that the lawyer doesn’t return phone calls.
This seems pretty basic to me. You return every call right away – and you do this without the put-upon promise on your voice message that you will do it at your “earliest convenience.” If you can’t do this, you need to start limiting your case load. If you can’t do this, you deserve to lose the client to a lawyer who will return the phone call.
You should also return phone calls from your colleagues, particularly when the call concerns a current or former client. Thankfully, when it comes to appeals, the clerk’s office of the D.C. Court of Appeals is now ordering trial counsel to transfer the trial file to the appellate lawyer. Maybe this will make a difference. Because right now it often doesn’t get done. And I understand just how the client feels when it is now my calls that are going unanswered.
I had the pleasure the other day of serving as co-counsel with Jon Norris, who for me represents the gold standard in criminal defense in D.C. Although our clients had been charged with minor misdemeanors, he treated the case as if the client had just paid him a fortune to represent the client in a major felony case. This is service. This is the model we should all aspire to.
