UNDERDOG - Criminal Defense/ DWI / DUI Defense in Maryland, Virginia, DC

 Bill of Rights. (From the public domain.) 

For awhile, the Valerie Plame/JoeWilson/Scooter Libby story went on the backburner. Then, in late July 2008, Robert Novak -- whose column blowing Plame's CIA cover led to the prosecution and conviction of Libby -- hit a pedestrian and kept driving, followed by an announcement shortly thereafter of his malignant brain cancer and retirement.

Not long thereafter, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit voted 2-1 (Judges Sentelle and Henderson affirming and Judge Rodgers concurring in part and dissenting in part) to uphold the dismissal of Plame's and Wilson's lawsuit against Libby and company over damages allegedly caused by the revelation of Plame's covert CIA status. Wilson, et al., v. Libby, et al., __ F.3d _ (D.C. Cir., Aug. 12, 2008).

Plame and Wilson's suit seeks damages for Constitutional violations under Webster Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which is a case governing private party lawsuits against federal officials for Constitutional violations. In affirming the dismissal of Plame's and Wilson's lawsuit, the Court of Appeals stated: "We have discretion in some circumstances to create a remedy against federal officials for constitutional violations, but we must decline to exercise that discretion where 'special factors counsel[] hesitation' in doing so. See Bivens, 403 U.S. at 396; Spagnola v. Mathis, 859 F.2d 223, 226 (D.C. Cir. 1988) (en banc). In Bivens, the Court implied a remedy where there were no '"‘special factors counselling hesitation in the absence of affirmative action by Congress’"' that required 'the judiciary [to] decline to exercise its discretion in favor of creating damages remedies against federal officials." Spagnola, 859 F.2d at 226 (quoting Bivens, 403 U.S. at 396)." Here, the Court of Appeals found that the Privacy Act provided a remedial scheme for Plame and Wilson that precluded a Bivens action.

The D.C. Circuit further declared: "Litigation of the Wilsons’ allegations would inevitably require an inquiry into 'classified information that may undermine ongoing covert operations.' See Tenet, 544 U.S. at 11. The amended complaint alleges that the disclosure of Valerie Plame Wilson’s identity 'impaired . . . her ability to carry out her duties at the CIA,' Am. Compl. ¶ 43, increased therisk of violence to her and her family, id. at ¶ 42, and subjected her to treatment different from that given other similarly situated agents, id. at ¶¶ 51–52. We certainly must hesitate before we allow a judicial inquiry into these allegations that implicate the job risks and responsibilities of covert CIA agents. In cases involving covert espionage agreements, '[t]he state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection [the Court] found necessary in enunciating the Totten rule.' Tenet, 544 U.S. at 11. Here, although Totten does not bar the suit, the concerns justifying the Totten doctrine provide further support for our decision that a Bivens cause of action is not warranted."

Responding to the majority, Judge Rogers wrapped it up as follows: "In conclusion, the court’s decision is not the product of the application of the Bivens doctrine to appellants’ claims as Wilkie directs, 127 S. Ct. at 2598. It is rather the result of the refusal to acknowledge precedent that Bivens is a remedial doctrine and absent special factors applies where Congress created statutory protection for some persons in some circumstances but did not address the type of constitutional claims alleged by Mr. Wilson and in part by Ms. Wilson. The disclosure concerns identified by the court as counselling hesitation are either unfounded or premature because there has been no discovery or presentation by the Wilsons to the district court of how they will attempt to prove their claims. Contrary to separation of powers, then, the court effectively cedes to Congress the judiciary’s defined role to decide issues arising under the Constitution, despite the fact that the Privacy Act neither is nor purports to be a universal bar to all constitutional relief related to the release of agency records. Accordingly, I concur in Parts II and III.B of the court’s opinion, and in the judgment regarding Ms. Wilson’s equal protection and due process property claims, but I respectfully dissent from the affirmance of the dismissal of Mr. Wilson’s First and Fifth Amendment claims against each appellee and Ms. Wilson’s due process state-endangerment claims (except against appellee Armitage), and would leave to the district court to address in the first instance appellees’ defenses of immunity, see, e.g., Saucier v. Katz, 533 U.S. 194, 201 (2001); Davis, 442 U.S. at 249; Butera, 235 F.3d at 646."

Judge Rogers' partial dissent/partial concurrence provides very strong arguments to increase the chances of en banc review by the entire District of Columbia Circuit over the very critical issue of when to permit and not permit a Bivens action to proceed forward. Jon Katz.

 Bill of Rights. (From the public domain.) 

One day I asked a prosecutor if she feels any discomfort going against unrepresented criminal defendants, most of whom are not poor enough to qualify for court-appointed counsel but for whom the financial struggle is too great or impossible to hire a lawyer, and some of whom are dilatory in obtaining a court-appointed or private lawyer.

She said she feels no discomfort, because she offers all defendants the same guilty plea offers, whether or not represented by a lawyer. Assuming the truth of her assertion, for argument's sake, what happens after she conveys the initial guilty plea offer? A capable criminal defense lawyer will advise the client whether to reject the plea offer, accept it, or return with a counteroffer, and how to time and express any reply. How will the pro se defendant respond? If the case goes to trial, will the pro se defendant represent himself or herself anywhere near as capably as an experienced trial lawyer? Also, the pro se defendant effectively loses the right to remain silent throughout trial.

How do prosecutors respond to a counteroffer from a skilled trial lawyer versus from a pro se defendant (and, for that matter, versus a lawyer who is green or about whom the prosecutor knows nothing)? Negotiations are about hedgebetting. Prosecutors have fewer bets to hedge with unrepresented defendants, whom, by definition, are on weaker ground than if they had a qualified lawyer.

A case in point came recently when I walked into misdemeanor court, and the prosecutor cheerfully offered for my client to plead guilty to a lesser but still jailable and collateral-risk laden offense. I asked which witnesses were present, and none were. During the break, the prosecutor said the arresting officer in the case was on his way, and urged that his guilty plea offer was the way to go. Probably having had much more time to know my one case versus the prosecutor's two dozen cases, I told the prosecutor that even if the cop arrived, he still had a weak case because of A, B and C, and I said I would not recommend that my client plead guilty to any jailable offenses. The prosecutor ended up dismissing my case later in the day.

How would a pro se defendant have handled the foregoing scenario, and how would the prosecutor have responded? Would the pro se defendant have known whether this was a courthouse and case where ordinarily the defendant can get away with waiting for prosecution witnesses to show up before deciding whether to accept a guilty plea offer? Would the prosecutor have told the pro se defendant that the plea offer would be off the table upon the cop's arrival? Would the prosecutor have emphasized the jail risks faced by the pro se defendant by going to trial when the plea offer involved no executed jail request from the prosecutor? Would the prosecutor have argued that the pro se defendant was entering dangerous, uncharted territory to take a case to trial without a lawyer?

How do we ameliorate the plight of pro se defendants? One way is to assure that quality court-appointed/ public defender counsel is made available to indigent defendants, and that truly needy defendants are not barred by guidelines or unfair or uneven application thereof that misses them. What do about defendants who are not poor enough to obtain indigent defense counsel but will struggle mightily to pay for a lawyer -- after paying for rent, transportation, children's needs, groceries, and other essentials -- or will not be able to obtain the funds at all? As to the former category of criminal defendant, at least in the past, the Maryland criminal defense bar used to have members who agreed to be part of a "gray panel" that offered reduced rates to such people; such a practice needs to continue. Have indigent defense lawyer application guidelines kept up with today's economic realities of expensive rates for qualified criminal defense lawyers and high prices for gas, food, and other essentials? Should public funds be made available to provide partial subsidies to people who are borderline eligible to obtain indigent defense counsel but do not qualify? Awhile ago, I wrote this piece about the struggles that most ordinary-income people face in paying for quality legal representation.

Of course, probably we always will also see a handful of pro se criminal defendants who would not obtain counsel even if they qualified for indigent defense counsel. All criminal defendants have the right to choose their own counsel, including to proceed with self-representation. Caveat emptor. Jon Katz.

 Bill of Rights. (From the public domain.) 

Congratulations to Philip-Lorca diCorcia for having obtained the dismissal last March of a lawsuit seeking damages for his having photographed the plaintiff when both were on Manhattan sidewalks. This New York Times article gives a detailed rundown. Jon Katz.

 Bill of Rights. (From the public domain.) 

 Bill of Rights. (From the public domain.) 

A prison inmate's case does not become quiet merely because of a conviction and a lost appeal. Many inmates next seek post conviction relief, whether the term of art for such relief applications is habeas corpus, coram nobis, or any other phrase. Many inmates file their own post conviction petitions, sometimes drafted by other inmates, sometimes handwritten, and sometimes assembled with typewriters where computers are unavailable. Many inmates send letters to judges seeking relief. Some write for assistance to me and other lawyers they do not know, but few contact me back after I quote an hourly retainer fee for an initial visit to discuss their case, when it appears to be a matter I might be willing to defend.

A knee-jerk reaction of many judges and legislators focused on keeping down the cost of running the judicial branch -- rather than in dispensing true justice -- might be to clamp down on the avenues of post conviction relief. In fact, such clampdowns already exist in such terms as severely short federal deadlines for filing habeas corpus petitions, with numerous states imposing their own deadlines, as well.

Many inmates at the post conviction stage feel very desperate, seeing this stage as a final hope for freedom, after having lost at the trial court stage, and the appellate stage if an appeal has been filed (people who plead guilty often do not seek or obtain appellate relief). A criminal defense lawyer handling such a case should be ready for some of their clients to grasp at straws and anything else to try to pull themselves up from the often excruciating toll of prison on their freedom, dignity, and loss of time and life outside prison walls. Sometimes I wonder how many inmates file post conviction petitions partly as an effort to see the outside world for a few hours during the ride to and back from the courthouse hearing the case; it is a legitimate desire.

I have defended many post conviction cases over the years, most of them in Maryland, and some in the District of Columbia, where post conviction matters ordinarily must be raised and resolved before the completion of the appellate stage. Fortunately, I have won many post conviction cases, but have lost more than I have won. Often the victories have come from insufficient advice of rights to the defendant at guilty plea hearings. In numerous other victories, the defense lawyer did not object to materially erroneous jury instructions. Some post conviction victories come in the form of getting an illegal sentence corrected, including where a court misapplies mandatory minimum sentencing calculations. In one instance, a victory came from my presenting a witness whom the trial lawyer did not contact nor present, whose testimony could have avoided my client's murder conviction through showing a self defense shooting against an armed decedent.

A post conviction victory does not automatically mean release from prison, where a retrial is the applicable relief. Nevertheless, prison release is the relief obtained by Darrell Copeland, under Virginia's somewhat new law that provides inmates the opportunity to present newly-discovered non-biological evidence of innocence, following on the heels of older laws that permit the presentation of DNA evidence to seek reversal of convictions.

Darrell Copeland was convicted in Virginia for a 2006 handgun possession offense, for which he received a five-year prison sentence. Later analysis of the alleged handgun revealed it to be a replica pistol that could not be operated as a firearm. Mr. Copeland is the first inmate to be released from prison under this law permitting the issuance of a Writ of Actual Innocence involving non-biological evidence. As reported by the Washington Post, "Virginia had long barred the introduction of new evidence more than three weeks after sentencing."

Although Maryland is no liberal cakewalk for criminal defendants, Virginia is even less so. In that context, it appears noteworthy that Virginia's attorney general supported the result. His spokesperson mentioned that when serving in Virginia's legislature, Attorney General Bob McDonnell supported the legislation that led to Mr. Copeland's release.

The law under which Mr. Copeland is being released reads as follows:

"§ 19.2-327.10.  Issuance of writ of actual innocence based on nonbiological evidence. Notwithstanding any other provision of law or rule of court, upon a petition of a person who was convicted of a felony upon a plea of not guilty, the Court of Appeals shall have the authority to issue writs of actual innocence under this chapter. Only one such writ based upon such conviction may be filed by a petitioner. The writ shall lie to the court that entered the conviction; and that court shall have the authority to conduct hearings, as provided for in this chapter, on such a petition as directed by order from the Court of Appeals. In accordance with §§ 17.1-411 and 19.2-317, either party may appeal a final decision of the Court of Appeals to the Supreme Court of Virginia. Upon an appeal from the Court of Appeals, the Supreme Court of Virginia shall have the authority to issue writs in accordance with the provisions of this chapter."

Unfortunately for Mr. Copeland, his release will not be to fresh air, but instead will be to serve a pending federal sentence.

Congratulations and thanks to public defender lawyer Kathleen A. Ortiz for fighting for and obtaining this victory, and in such a relatively quick timeframe at that. Jon Katz