Washington Post Editorial: Getting Prosecutors to Share What They Know: A modest reform could help prevent wrongful convictions [March 20, 2016]

Posted on: March 28th, 2016  |  No Comments

The CONSTITUTION requires that prosecutors disclose favorable and exculpatory information to the defense in criminal cases. What that entails is open to interpretation by individual prosecutors, and failure to live up to the obligation can (and unfortunately has) led to wrongful convictions. A rule being considered by federal judges for the District of Columbia detailing what must be disclosed and when would be a step in the right direction.

The rule would establish courtwide standards for disclosure of information. A committee of judges and lawyers from both the prosecution and defense bar spent a year drafting the proposal. Its impetus goes back to the botched prosecution in 2008 of then-Sen. Ted Stevens (R-Alaska). Prosecutors’ failure to disclose relevant information to the defense prompted U.S. District Court Judge Emmet G. Sullivan, who presided over the trial, to seek a rule change for all federal courts. When that effort failed, attention was narrowed to the U.S. District Court for the District of Columbia.

The U.S. Attorney’s Office was represented on the committee, but it is expected to oppose the proposed rule. “We have some concerns with some aspects of the proposed rule and our office is working with the Justice Department on comments to be submitted,” a spokesman said. The Justice Department has opposed court rules and legislation, favoring instead internal reforms such as improved training and tightened guidelines. Flagrant, intentional misconduct like that in the Stevens case is probably the exception, with, we believe, most prosecutors committed to upholding the law.

But as the Constitution Project, a nonprofit think tank that seeks bipartisan consensus on legal issues, pointed out in a letter last week supporting the new rule, “Even when prosecutors are acting in good faith, the inconsistent, shifting and sometimes contradictory standards for criminal discovery have made compliance…difficult.” The Public Defender Service for the District said the current situation isn’t good enough: It listed eight recent cases, “a non-exhaustive list,” in which relevant information was disclosed late or not at all.

The best way to ensure the timely and fair exchange of information would be to give defense counsel access to all investigative information, with certain exceptions for public safety and witness protection. Jurisdictions that have gone this route say it has worked well, but there seems little chance of federal prosecutors moving to such a system anytime soon. That makes all the more urgent the court’s adoption of this modest reform.

-The Washington Post; Sunday, March 20, 2016; Editorial Board

New York Times Editorial: The Push for Legal Marijuana Spreads [Friday November 6, 2015; Page A22]

Posted on: November 12th, 2015  |  No Comments

Support for making marijuana legal is increasing around the world, and that is a good thing. Earlier this week, the Mexican Supreme Court opened the door to legalizing the drug by giving four plaintiffs the right to grow cannabis for personal use.

In Canada, the newly sworn in prime minister, Justin Trudeau, has said he intends to change the law so people can use the drug recreationally; medicinal use is already legal in that country. And in the United States Senator Bernie Sanders of Vermont, who is seeking the Democratic nomination for president, recently introduced a bill that would let states decide if they want to make the drug legal without worrying about violating federal law.

Laws banning the growing, distribution and possession of marijuana have caused tremendous damage to society, with billions spent on imprisoning people for violating pointlessly harsh laws. Yet research shows that marijuana is far less harmful than alcohol and tobacco, and can be used to treat medical conditions like chronic pain.

The Mexican Supreme Court’s ruling, which applies only to the four plaintiffs seeking a right to grow marijuana, does not strike down the country’s marijuana laws. But it will open the way to more legal challenges and put pressure on President Enrique Pena Nieto and the Mexican congress to change the law, which has helped to fuel drug-related crime in the country.

Prohibition in Mexico and elsewhere in the Americas will also become harder to maintain if California voters legalize recreational use of marijuana. Activists there are seeking to put legalization initiatives on the 2016 ballot. California was the first state to allow medicinal use of the drug in 1996, and it is a big market for illegal Mexican cannabis. It would make little sense for Mexico to spend countless millions a year in drug enforcement to bank a substance that is legal and regulated across its northern border all the way up the western coast to Canada. Oregon and Washington have already legalized the drug, as have Colorado, Alaska and the District of Columbia.

Some proponents of keeping prohibition in place might be encouraged by the defeat of an Ohio legalization initiative on Tuesday. But voters did the right thing by rejecting that measure because it would have granted a monopoly over the growing and sale of legal marijuana to a small group of investors. Even the acting administrator of the Drug Enforcement Administration, Chuck Rosenberg, who opposed legalization, described that ballot measure as an “anomaly.” (Mr. Rosenberg also said marijuana was “harmful and dangerous” but he acknowledged that other dangerous substances are “perfectly legal.”)

What’s needed now is responsible leadership from President Obama and Congress. They ought to seriously consider the kind of legislation Mr. Sanders has proposed. His bill would remove marijuana, or “marihuana” as it is called in federal law, from Schedule I of the Controlled Substances At, which is meant for drugs that have a high potential for abuse and no medical use.

This change would allow states to decide if they want to make the drug legal and how to regulate it without being limited by federal law. Mr. Sanders’s bill would also make it illegal to transport the drug across state lines. If Congress is unwilling to act, Mr. Obama should move on his own by ordering the attorney general to request a study by the secretary of health and human services, which would be needed if the administration is to remove the drug from Schedule I on its own.

A growing group of activists, judges and lawmakers is showing the world a path to more sensible drug policies. Mr. Obama and Congress should join them.

-New York Times; Friday November 6, 2015; Page A22

New York Times Editorial: Excluding Blacks From Juries [Monday, November 2, 2015; Page A20]

Posted on: November 2nd, 2015  |  No Comments

One prospective juror did not make enough eye-contact. Another appeared nervous and confused. A third had a son who was close in age to the defendant. A fourth was involved with the Head Start program.

These were just a few of the dozens of reasons Georgia prosecutors gave for eliminating people from sitting on the jury in the 1987 murder trial of Timothy Tyrone Foster, an 18-year-old black man charged with killing a 79-year-old white woman named Queen Madge White.

The one reason prosecutors did not give was the one thing those four potential jurors had in common: They were black.

A year before Mr. Foster’s trial, the Supreme Court, in the case of Batson v. Kentucky, reaffirmed that it is unconstitutional to exclude jurors because of their race – a practice with a long, odious history. It has survived thanks to the so-called peremptory challenge, which allows a juror to be excluded for no reason at all, as opposed to “for cause” challenges, in which a lawyer must give a reason for an exclusion, which the judge can accept or deny.

In requiring prosecutors to give a “race-neutral” reason for excluding black jurors, the court wrote that racial discrimination in jury selection “harms not only the accused whose life or liberty they are summoned to try,” but undermines “public confidence in the fairness of our system of justice.”

Mr. Foster was convicted by an all-white jury and sentenced to death. For nearly three decades since, state prosecutors have denied that race was a factor in their decision to strike all the black jurors from his trial. They have also steadfastly refused to turn over their jury-selection notes to defense lawyers.

Today, the Supreme Court will hear oral arguments in the case, Foster v. Chatman, to decide whether the prosecutors are telling the truth. The Georgia courts have all ruled in the state’s favor. But now those jury-selection notes are at the center of the case. Almost 20 years after Mr. Foster’s conviction, his lawyers finally got hold of them through the state’s open-records law.

The notes show that, contrary to prosecutors’ claims, race was indeed central to their decision to exclude certain jurors. Each black potential juror’s name is highlighted in green and marked with a “B”. The first four names on a handwritten list of “Definite Nos” are those of the black jurors who were struck. In a separate list, those jurors are ranked against one another, “in case it comes down to having to pick one of the black jurors.”

Prosecutors now claim, implausibly, that their notes show a concerted effort to keep diligent records in order to rebut expected charges of racial discrimination.

The Foster case may be an extreme example of how brazenly prosecutors will take advantage of peremptory challenges to create racially unrepresentative juries and win convictions. But is far from unique. In 2012, a North Carolina court examined 173 capital cases and found that prosecutors removed more than half of all black potential jurors, but only a quarter of the rest. A 2003 study of eight years of trials in one Louisiana parish found a black-to-white strike rate of three-to-one. In 1986, one Philadelphia prosecutor recorded a trial-training film for his staff in which he said, “you don’t want those people on your jury.”

Over the years, some Supreme Court justices have expressed discomfort with peremptory challenges. Justice Stephen Breyer wrote in a 2005 case, “the right to a jury free of discriminatory taint is constitutionally protected – the right to use peremptory challenges is not.”

Peremptory challenges can, when used honestly, help both sides in a trial ensure a more impartial jury. But is still far too common for prosecutors to exploit this tool for improper purposes. The justices should be particularly vigilant for such unconstitutional behavior, especially when it is dressed in “race-neutral” garb.

-New York Times; Monday, November 2, 2015; Page A20

Client/Attorney acquitted of assault after being wrongfully accused.

Posted on: October 28th, 2015  |  No Comments

On October 23, 2015, District Court Judge John C. Moffett finds our client not guilty of accusations of second degree assault after trial in the District Court of Maryland for Montgomery County. Our client was overwhelmed with joy after being vindicated.

Great news! Our client, a highly decorated Prince George’s County police officer, is vindicated and exonerated of all charges in the Superior Court of the District of Columbia.

Posted on: October 13th, 2015  |  No Comments

In July 2014, our client, a Prince George’s County Policeman and his wife with another couple went to see a show at the Howard Theater. Upon leaving the show it became evident that the valet for the Howard Theater had inadvertently left the lights on, on our client’s friend’s automobile. The valet became belligerent and taunted our client’s friend, while refusing to adjust the parking fee or assist the friend in getting his automobile jump started. The friend was then surrounded and threatened. Our client observed one of the valets grab a metal pipe from the valet stand. Observing the former, our client went to his automobile, grabbed his identification in one hand and his off-duty service revolver in the other. Our client went to the assistance of his friend who was then surrounded by the valet staff. Our client ordered the valet staff to get to the ground and drop their weapon, which included a metal valet sign and the metal re-bar pipe. Our client never pointed his service revolver at any of the assailants. The Metropolitan Police Department was called and inexplicably arrested only our client and his friend (represented by Esteban Gergely). Our client was charged with two felonies: Assault with a Dangerous Weapon and Possession of a Firearm during a Crime of Violence, which carried a minimum mandatory five years’ incarceration, if convicted. Because the client was a police officer, charged with a felony, the Prince George’s County Police Department placed the client on leave-without-pay. The client remained on leave-without-pay for fifteen months.

Our associate, Abigail Scott, combed through the security video given to us by the Howard Theater and realized that a citizen was taking a cell phone video of the incident. Abigail then developed a flyer which we distributed to all the local stores hoping to find the, yet unknown, citizen with the cell phone video. My special investigator and myself also went to the Howard Theater backdoor to show the flyer. My special investigator realized that by chance the cell phone videographer was present at the backdoor when we arrived. The videographer did not identify himself at first; however, two weeks later, we received a telephone call from the videographer who provided us with the video exculpating our client and his friend. We then presented a video compilation produced by, Joey Rossetti of JR Media Systems LLC, showing the cell phone video and the Howard Theater surveillance video in sync. This was shown to the court and to the United States Attorney’s Office at a short motions hearing. Shortly thereafter, today, the Court on motion of the United States Attorney’s Office dismissed the Indictment completely. My client is looking forward to having his back-pay reinstated.

This ordeal was patently unnecessary and shows that diligent investigation and attorney work-product goes a long way to free the innocent. A large round of applause to Joey Rossetti, Esteban Gergely, Abigail Scott, and our special investigator for a job well done!

Automobile injury case in the District of Columbia settles for $300,000.00.

Posted on: September 30th, 2015  |  No Comments

Our client suffered significant injuries on May 9, 2013, as a result of being struck in the rear of his vehicle by a commercial vehicle. The significant injuries included injuries to the client’s leg. The client was transported to the hospital for surgery and the client had to have portions of his leg surgically removed due to an infection proximately caused by the collision. The case settled May 2014.

Automobile injury case settles in the Circuit Court for Charles County, Maryland, for $175,000.00.

Posted on: September 30th, 2015  |  No Comments

Our client was seriously injured on July 12, 2011, as a passenger in a one-car incident in Charles County. Our client was the passenger in an automobile which was driven in such a fashion as to cause the automobile to leave the roadway and roll over on the side of the road. Our client had to be cut from the automobile and transported to the hospital with significant injuries to her head, scalp, ear, neck, and back. The case settled August 2015.

Prince George’s County, Maryland Circuit Court judge grants our client’s Motion to Suppress evidence as a result of an illegal search and seizure. State dismisses the case as a result of the suppression of the evidence on September 25, 2015.

Posted on: September 30th, 2015  |  No Comments

The Honorable Krystal Q. Alves found that the fruits of the search of our client’s vehicle was an illegal inventory search and suppressed all of the evidence seized from our client’s vehicle. The suppression of the evidence illegally seized forced the State to enter all charges as dismissed [Possession with Intent to Distribute Cocaine, Possession with Intent to Distribute Marijuana, and Driving while Impaired by Drugs or Drugs and Alcohol].

Montgomery County Circuit Court judge dismisses unfounded rape charges against our client as a result of our Motion to Dismiss the Indictment for pre-indictment delay on June 25, 2014

Posted on: September 30th, 2015  |  No Comments

The Honorable Richard E. Jordan granted the unprecedented and extraordinary relief requested by this office to dismiss the Indictment against our client for pre-indictment delay. No court in the United States had granted such relief without state action being the cause of the pre-indictment delay. Our client was unaware of any allegations against him for approximately 26 years, from the date of the allegations. The Complaining Witness did not report, for approximately 26 years, any inappropriate contact between herself and her former boyfriend to the police for reasons only known to the Complaining Witness. Our client had moved from the Washington Metropolitan area to the Southern regions of the United States. Our client made no attempt to contact the Complaining Witness for approximately 26 years. The Complaining Witness was encouraged to try to call our client to get him to inculpate himself. However, try as the police might have, our client never in any sense admitted to any inappropriate contact in the recorded telephone sting orchestrated by the Police Department. Our client was arrested and extradited to Maryland only on the statements of the Complaining Witness without the slightest corroboration of her clearly stale allegations. Our client spent a considerable amount of time incarcerated in the Montgomery County Detention Center before he was referred to us for relief. We secured our client an immediate bond hearing and he was released by the Circuit Court for Montgomery County pending trial.

Montgomery County, Maryland, Circuit Court jury acquits our client on September 2, 2015, of allegations of a sex offense, which the State alleged to have occurred between 17 and 20 years ago

Posted on: September 30th, 2015  |  No Comments

After a three-day trial in the Circuit Court for Montgomery County, Maryland, before the Honorable Gary E. Bair, a jury acquitted our client of all charges placed against him by the State’s Attorney’s Office for Montgomery County, Maryland. The Complaining Witness had waited at least 17 years before disclosing to the authorities allegations of sexual misconduct against our client. There was a significant issue of the Defendant’s right to have the charges presented to a Grand Jury in a timely fashion and thereby affording him a speedy trial and opportunity to adequately defend himself. The State was unable to prove that our client was guilty of any of the charges in the Indictment. Our client was quite elderly and if convicted would have suffered significant imprisonment, which would have been physically and mentally devastating to a person of his age. Our client at all times protested his innocence and the vindication was magnificent! Kudos and a loud golf clap to my office staff and Abigail Scott, as well as, co-counsel, David Krum.