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Law of Criminal Defense - Archives for: June 2011

Archives for: June 2011


Permalink 06:32:03 am, by forhall, 211 words, 9820 views   English (US)
Categories: blog

DC criminal defense lawyer accused of obstruction for falsifying evidence for client

Washington Post: Federal indictment of lawyer Daum in D.C. creates angst among defense attorneys by Keith L. Alexander:

Federal prosecutors charged Charles F. Daum, a well-regarded defense attorney in D.C. Superior Court, with conspiracy and witness tampering....Prosecutors say these are the first such charges against a practicing Washington-based lawyer in more than 15 years. Area lawyers, including many not connected to the case, are watching intently.

I don't see why, if the government's allegations are true:

Daum then staged more photographs with a razor blade, scale and other items that showed someone other than White cutting rock cocaine in the Northeast apartment days before the raid, according to the government.

Prosecutors say Daum created a fake lease to suggest that White lived in Hyattsville, not the District, when the raid took place. The indictment also says he encouraged one of White’s associates to encourage a witness to say that someone else lived in the apartment — and told White to encourage that witness to leave town during the trial to avoid testifying.

The photos were introduced as evidence during a trial in U.S. District Court. That trial ended with a deadlocked jury, and prosecutors were preparing to retry White when the allegations against Daum and the investigators surfaced.

Permalink 06:25:28 am, by forhall, 122 words, 6735 views   English (US)
Categories: blog

"Mockingbird" quote posted in Dec. 2009

Back in December 2009 was this post:

Harper Lee, To Kill a Mockingbird, ch. 22, p. 197 (1960):

“I simply want to tell you that there are some men in this world who were born to do our unpleasant jobs for us. Your father is one of them.”

That post passed 30,000 views on Saturday. The way this software counts views, the actual number of views can only be estimated, if the stats on are any comparison. There, visits mentioned on the posts are a fraction of the number that come to the website. For example, there might be 30 visits mentioned on a post but 1,000 came to the website that day. I think visits are counted by those that register as guests, which isn't required.


Permalink 06:01:41 am, by forhall, 120 words, 6350 views   English (US)
Categories: blog "Indefensible / Public defenders are too overloaded to protect the rights of the accused" Indefensible / Public defenders are too overloaded to protect the rights of the accused by Clay Conrad from the July 2011 issue:

The Sixth Amendment guarantees criminal defendants the right to counsel, but that does not mean all defendants receive good representation. Too often, their defense is not even minimally adequate.

Public defenders are lawyers who work for the court system representing indigent defendants instead of maintaining their own practices. Some are passionate civil libertarians who choose to represent the destitute, damned, and despised. Some simply prefer a regular paycheck to the vicissitudes of private practice. Contrary to their reputation, many are great lawyers. But even great public defenders can find it difficult to do great work in every case.

Permalink 05:21:22 am, by forhall, 119 words, 6028 views   English (US)
Categories: blog

SC: Lawyer's services subject to Fifth Amendment takings clause

SC Criminal Defense Blog: Ex Parte Brown--Lawyer's services are property subject to the protection of the Fifth Amendment:

In Ex Parte Brown, decided June 21, 2011, the S.C. Supreme Court has finally held that lawyers are entitled to compensation for their services, and that denial of reasonable compensation is a violation of the Fifth Amendment's Takings Clause. The opinion arose from a Beaufort County case in which the trial judge refused to order compensation above the statutory maximum of $3500 to appointed counsel after a complex trial, a decision which was appealed by trial counsel. The S.C. Bar filed an amicus brief urging the Court to hold that denial of reasonable compensation implicates the Fifth Amendment as an unjust taking.


Permalink 06:01:06 am, by forhall, 562 words, 6920 views   English (US)
Categories: blog

CA2: No abuse of discretion to keep CJA counsel in CP case where lawyer moved to withdraw because of revulsion with material

Defense counsel's revulsion at representing a child pornographer was not ineffective assistance, and denial of the lawyer's motion to withdraw for this personal conflict of interest was not an abuse of discretion. The district court found that the constitution only required adequacy, not zealousness. United States v. O’Connor, 2011 WL 2417143 (2d Cir. June 16, 2011):

Fischer’s affirmation made clear that he had accepted appointment by the court to defend Sacco knowing the nature of the charges. He stated that he had proceeded industriously to prepare for trial, conducting interviews, doing research, and examining “100 pounds” of documents. The affirmation quite plainly stated that Fischer wished to withdraw because of his abhorrence of a “single bit” of evidence in the case. Ethical Consideration 2-29 provided that he should not seek to withdraw except for compelling reasons; and if, as EC 2-29 specified, repugnance of the subject matter of the case does not fit into that category, Fischer’s revulsion at a single item of evidence in the case surely did not constitute a compelling reason. Finally, Fischer’s affirmation’s reference to the change in his “ technical perspective” (emphasis added) suggests that the condom evidence caused Fischer to believe that his client was guilty. Under the express terms of EC 2-29, such a belief is not a sufficient reason to withdraw.

We thus see no abuse of discretion in the district court’s denial of Fischer’s motion based on the presentations to the district court. Implicit in the court’s statement that it “expect [ed] that Attorney Fischer w [ould] continue to provide Defendant Sacco with appropriate representation,” Order Denying Withdrawal at 1 (emphasis added), was the expectation that Fischer would represent Sacco as vigorously as required by the Code. That expectation was entirely reasonable in light of the absence of any suggestion by Fischer in his motion that he would be unable to comply with any of the Code’s Disciplinary Rules or any suggestion that his continued representation of Sacco might possibly expose him to a sanction. Further, Fischer made clear in the motion itself that he had done most of the work necessary to prepare for trial. And he indicated in his April 30 Letter that he was ready, able, and willing to proceed to trial and to cross-examine S.O. on Sacco’s behalf.

Nor does Sacco’s brief on appeal provide any basis for concluding that the district court should have granted Fischer’s motion. Although it cites the title of DR 7-101 (“Representing a Client Zealously”), it does not quote or describe any provision of that Rule and does not suggest that Fischer failed to comply with any of the Rule’s commands. Further, while Sacco’s brief quotes EC 7-1's provision that an attorney should “represent the client zealously,” it provides no basis for a conclusion that Fischer did not represent Sacco zealously. His objections to Fischer’s performance are to strategic decisions such as the timing of Fischer’s objection to the admission of Sacco’s self-styled autobiography and the timing of a request for a bench trial. The record makes plain that Fischer competently cross-examined s.o. at trial, and Sacco’s brief on appeal does not contend to the contrary.

In sum, the record provides no basis for a conclusion that the denial of Fischer’s motion to withdraw deprived Sacco of a fair trial.


Permalink 03:16:32 pm, by forhall, 187 words, 6473 views   English (US)
Categories: blog

Charleston WV federal court changing CJA administration

A federal judge's former law clerk was put in charge of the CJA plan in Charleston WV, and the lawyers don't like it. See Lawyers decry federal judges' panel appointment by Zac Taylor in The Charleston Gazette:

Federal judges in the state's Southern District have agreed to appoint a supervising attorney to oversee a panel of lawyers who represent financially strapped defendants charged with federal crimes.

The plan will give the new supervisor the authority to appoint lawyers to the Criminal Justice Act panel and to review and issue payment vouchers for casework -- duties formerly held by the district's Office of the Federal Public Defender.

Chief U.S. District Judge Joseph Goodwin ordered the public defender's office to begin providing administrative materials to the circuit clerk's office Tuesday in anticipation of the switch. The district judges will vote on final approval of the plan on Monday.

But the members of the panel are opposed to the new plan, which usurps any authority the public defender's office had in choosing qualified lawyers to make up the panel, said Deirdre Purdy, spokeswoman for the Criminal Justice Act panel.


Permalink 11:36:58 am, by forhall, 155 words, 8306 views   English (US)
Categories: blog

NYT: "Delivering a Lawyer Within 15 Minutes"

NYTimes: Delivering a Lawyer Within 15 Minutes (Soda Extra), by John Schwartz:

The wheels of justice tend to be slow, but arrests can happen with lightning speed — and what happens next can be crucial. In searches, seizure and interrogation, things can go badly wrong.

At that moment, a lawyer might help keep things from getting out of hand, asserting Miranda rights against interrogation or starting the bail process. But getting that lawyer is no easy thing, said Chris Miles, who co-founded a company, LawyerUp, to get lawyers on the case within 15 minutes.

“If I want a pizza, I can get a pizza in 15 minutes,” he says. “I can get a plumber in the middle of the night. Why can’t I get a lawyer?”

He co-founded the company in February, and started full operations this month in Massachusetts, Connecticut and Rhode Island, having built a roster of criminal lawyers who do not mind getting late-night calls.


Permalink 12:52:17 pm, by forhall, 90 words, 8361 views   English (US)
Categories: blog

CO criminal defense lawyer disbarred for converting frozen funds

From Denver Post: Defense lawyer McAllister disbarred:

Veteran criminal defense lawyer Robert T. McAllister has been disbarred after admitting to converting client funds, Law Week Colorado reports.

McAllister acknowledged receiving $105,255.43 of client funds without permission or while the money was restricted by court order: $100,000 was held in the name of McAllister client Terry Vickery and had been frozen by a court order; $5,255.43 was a check payable to MNT Enterprises that the recipient had decided against cashing; McAllister asked the check writer, an insurer, to reissue the check in his name.

Permalink 07:38:57 am, by forhall, 55 words, 10952 views   English (US)
Categories: blog

Bergrin gets racketeering counts, too

The Paul Bergrin saga continues as a second superseding indictment adds racketering charges. Ex-Prosecutor Faces Racketeering Charges by David Gialanella:

A grand jury has returned a second superseding indictment against defense attorney and ex-prosecutor Paul Bergrin, accused of running a crime ring fueled by murder, fraud and other criminal activity, this time adding racketeering charges.


Permalink 07:46:45 pm, by forhall, 148 words, 8273 views   English (US)
Categories: blog

CA criminal defense attorney accused of bribing cop

California defense attorney accused of bribery on by Amanda Bronstad:

A criminal defense attorney in Orange County, Calif., has pleaded not guilty to bribery, while a solo practitioner in Los Angeles has agreed to be disbarred after admitting that he siphoned money from a couple injured in a drunk driving accident.

In the bribery case, Lawrence Anthony Witsoe of the Law Office of Lawrence A. Witsoe in Tustin, Calif., surrendered to the FBI on June 6 after being indicted on federal charges. Witsoe was taken into custody along with Aaron Scott Vigil, a police officer in Rialto, Calif.

A June 1 indictment alleges that Vigil, who served on a task force for the U.S. Drug Enforcement Administration in Riverside, Calif., agreed to accept a $2,500 bribe in exchange for falsely telling the Orange County, Calif., district attorney's office that one of Witsoe's clients was cooperating with the DEA.


Permalink 07:52:20 am, by forhall, 17 words, 7934 views   English (US)
Categories: blog

ABA Standards Links are broken

I looked on the ABA website, and the standards are no longer there; the link gets a 404.


Permalink 07:10:47 am, by forhall, 134 words, 8527 views   English (US)
Categories: blog

CA7: Misstating a holding in a brief gets a nasty comment

The Seventh Circuit called a law firm's selective quoting from a case with switching words in brackets "unprofessional." [Do lawyers really think that their opponents and courts don't read the cases they cite just to see if the case really supports a different proposition?] Girl Scouts of Manitou Council, Inc., v. Girl Scouts of the United States of America, Inc., 10-1986 (7th Cir. May 31, 2011):

That completes our analysis, except to note certain unprofessional features of the brief filed in this court by the law firm of Hogan Lovells US LLP on behalf of the national organization.

... The resemblance of that case to the present one is tenuous, to say the least, but without telling the reader what the case is about or that it involves political parties, the national organization’s brief misleadingly states: ...


Permalink 01:04:13 pm, by forhall, 127 words, 8638 views   English (US)
Categories: blog

Grits for Breakfast: “Bexar contemplates public, private alternatives to ‘wheel’ for indigent defense”

Grits for Breakfast: Bexar contemplates public, private alternatives to “wheel” for indigent defense:

A column from former St. Mary's Law School Dean Bill Piatt lays out possible options to stem rising indigent defense costs in a column in the SA Express News ("County needs more efficient indigent defense system," June 1), which opens:

Indigent defendants facing incarceration in Bexar County are entitled to have their defense paid by the county.

Recently, costs to taxpayers have grown dramatically. Between 2004 and 2010, indigent felony cases increased by 37 percent while defense costs increased by 46 percent. Indigent misdemeanor filings increased during this period by only 6 percent and the defense costs increased by 45 percent. Direct costs of indigent defense rose from $6.2 million in 2002 to $9.1 million in 2004, and to $13.3 million in 2010. Indirect costs added 33 percent.

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    "A lawyer shall represent a client zealously within the bounds of the law."
      —§ 1:1, Rule 3(a) (not "should" from CPR Canon 7)

    "I simply want to tell you that there are some men in this world who were born to do our unpleasant jobs for us. Your father is one of them."
      —Harper Lee, To Kill a Mockingbird, ch. 22, p. 197 (1960)

    "The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free."
      —Herring v. New York, 422 U.S. 853, 862 (1975)

    "The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted ... the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated."
      —United States v. Cronic, 466 U.S. 648, 655-56 (1984)

    "The only real lawyers are trial lawyers, and trial lawyers try cases to juries."
      —Clarence Darrow

    "America was neither founded, nor freed, by the well-behaved."
      —Semmes Luckett the younger

    "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."
      —Washington v. Texas, 388 U.S. 14, 19 (1967)

    "[T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'"
      —Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).

    "[O]ur so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. ... [A]s part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth."
      —Justice White concurring and dissenting in U.S. v. Wade, 388 U.S. 218, 256-58 (1967)

    We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.
      —Cynthia Roseberry


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