VIRGINIA CRIMINAL DEFENSE LAWYERS

 (These news items covered our criminal defense partner Jon Katz's legal analyses of  the Washington sniper trial, the Sami al-Arian trial, the Kobe Bryant trial, drug defense, child pornography defense, and obscenity defense; and Jon Katz's defense in the Plowshares case.)

Marks & Katz's Criminal Defense section is led by partner Jon Katz, who has been fighting for criminal defendants since 1991. Jon has advocated for over 2000 criminal defendants, and has defended over one hundred fifty criminal trials to conclusion. He has defended a wide variety of clients, including those accused of murder, sexual assault, drug offenses, child pornography, and drunk driving. Marks & Katz, LLC, provides one-stop service to non-citizens, not only to advise them on the immigration risks of certain convictions and sentences, but also for seeking a more immigration-favorable conviction and sentence when the chance of obtaining an acquittal looks too remote to our client. 

Criminal defense partner Jon Katz's usual days are consumed with defending ordinary people against a wide range of criminal accusations, slugging it out for the fighting advantage, and defending people against the landmines of injustice. While Jon is particularly familiar with courthouses in Maryland, Northern Virginia (Fairfax County, Fairfax City, Arlington County, Alexandria City, Prince William County, and Loudoun County), and the District of Columbia, he is first and foremost a persuasion lawyer who, like Travis Bickle in Taxi Driver, will go "anytime, anywhere" to fight for justice in the state and federal courts throughout Maryland, Virginia, and the District of Columbia. For samples of our criminal trial work, click here. 

NOTE: Attached are Marks & Katz' s distributed materials for the presentation by Jon Katz on Pretrial Preparation, for the Virginia Indigent Defense Commission's mandatory training, March 28, 2005, Fredericksburg, Virginia. 

Virginia pays so little money for court-appointed counsel as to make the system utterly unconstitutional. This makes too many qualified attorneys self-select themselves out of court appointments. For those who accept court appointments, their obligation for zealous client representation is no less than if the client paid a full retainer. My comments are geared towards the success of every criminal defense lawyer, whether the lawyer's client is retained or appointed.

First and foremost, make this your case. Take control of the case and the courtroom. Become the thirteenth juror. Don't ask the judge to help you hem in a runaway opposing witness. Offer the uncooperative witness the choice between a pinprick if the witness will do as told, or else a knife cut with salt added. Your client's liberty is at stake.

PRETRIAL PREPARATION STARTS WITH JURY INSTRUCTIONS, RENCH'S IDEA BOOK, CLOSING ARGUMENT, AND THE JURY

Like most effective planning, one needs to work backwards from the anticipated jury instructions if the case is to go to a jury, and with the applicable law if the case is to be a bench trial. In this way, the criminal defense lawyer starts with the roadmap to preparing all parts of the trial.

The living legendary trial law teacher Steve Rench of Denver, advises to have a separate idea notebook for each client. The trial notebook should be in a small three-ring binder or on a computer, for ease of adding new ideas as they develop, wherever and whenever they develop.

Steve recommends dividing the idea notebook into the following tabbed sections: To Do/Planning; Law/Legal Theories; Facts/Factual Issues; Ideas; Discovery Planning; Attack Opposing Case; Strategy; Jurors' Perspective; Analysis; Theory of Case; Story; Arguments; Voir Dire; Opening Statements; Prosecution Witnesses; Defense Witnesses; and Closing Argument.

As the trial lawyer develops the case, it becomes important to work backwards from the closing argument, as well. The closing argument will relate the defendant's case through a persuasive story that will be told throughout trial, from voir dire to opening to direct and cross to closing argument. This is not trial advocacy class; this is your opportunity to persuade.

If yours will be a jury trial, be jury-focused every step of the way. Do not be saddled with the stilted language and reasoning of law school. Juries tend to want to solve problems, even if that means deviating from legalese jury instructions. Give the jury a reason to sympathize with your client, and to find a way to fill in the blanks to help your client.

RESIST DOING BUSINESS AS USUAL

Be ready to deviate from the usual way of doing business with discovery and all other aspects of your defense. Your case is unique, and all preparation must be focused on the individuality of your case and client.

Before deviating from the usual way of doing business, learn the usual way of doing business. Obtain the court's practice and procedure manual and memos, standard motions forms, and standard discovery orders. Keep what works for your case, and seek changes where changes will benefit your case.

The District Court discovery rules are pitifully limited. Go beyond the District Court discovery rules to insist on obtaining all Brady material (exculpatory evidence).

Amend standard Circuit Court discovery orders, as needed. For instance, in a child pornography case, insist on providing your client's computer harddrive -- or a precise duplicate -- to your computer expert.

Visit the incident scene. Take pictures as needed. The prosecution witnesses have been there; level the playing field by knowing what they're talking about when setting the scene.

Police take witness statements. Do the same, yourself, or through an investigator. As advisable, write the statement, offer the witness to make and initial any corrections, and ask the witness to sign the statement, and to initial each page. If opposing witnesses don't hem in their testimony knowing you've got their statement, hem them in on cross examination with their statement.

Get the funds for experts to analyze the evidence, to advise you on attacking the evidence, and to testify, as needed. Warn your experts against writing any reports before they report their oral findings and conclusions to you first.

For DWI cases, early on, send a request for all information on the breath testing equipment and the credentials of the operating personnel, to Ms. Alka B. Lohmann, Virginia Department of Forensic Science, 700 North 5th Street, Richmond, VA 23219, Fax: (804) 786-6139.

KNOW YOUR CLIENT SO YOU CAN RELATE TO EACH OTHER, AND SO YOU CAN HELP THE JURY/JUDGE RELATE TO YOUR CLIENT. Ignore the common wisdom about keeping a professional separation from your client. If your client's out on bond, spend non-lawyer time together: throw a football together; visit the client's home and meet the client's family; laugh together and be alive together. If your client's incarcerated, be there to listen to your client, visit your client's family's home anyway, and maybe your client's workplace. If you cannot relate to your client, how can the judge and jury relate?

DEVELOPING THE CASE THEORY

Avoid presenting inconsistent theories to the jury.

Be more willing to present inconsistent theories to the judge (e.g., "The prosecutor failed to prove it's CDS, but even if it is, my client didn't know the CDS was there.").

Develop themes, as well (e.g., Keystone Kops, blurry-eyed eyewitness, and bloodsucking snitches).

Brainstorm, brainstorm, brainstorm. Brainstorm with non-lawyers. Do focus groups. Get feedback from mercilessly honest people. Brainstorm some more.

Anticipate the opponents' strategy.

PRETRIAL MOTIONS

File them timely, and notice your motions hearing dates timely. Possible motions to file include the following motions: for suppression of evidence (always file), to sever co-defendants, to sever counts, to compel discovery, to change venue, to provide advance Jencks material (written and oral statements of opposing witnesses), to preserve evidence, and in limine.

Do not assume the judge and the judge's law clerk know the applicable law. Judges are generalists who must handle civil cases, too. Law clerks may have no more than three years of law school knowledge and less then one year of post-law school knowledge. State the applicable law concisely and persuasively in your motions or in supplements to your motions. Unlearn the stilted writing methods of law school legal research and writing, and breathe life, brevity, and persuasion into your writing.

Give the judge and law clerk a chance to read the legal authority before the motions hearing date, rather than springing new authority on them at the motions hearing date. Attach cited slip opinions to your motion.

For drug cases, file a demand for the certificate of analysis.

To sufficiently assess the case's strengths and weaknesses, we need a thorough grasp of the facts and applicable law, we need to aggressively investigate the case and seek discovery, and we must brainstorm, brainstorm, brainstorm.

Then, we need to identify the good facts, the bad facts, and the facts beyond change. We need to find ways to de-fang the bad facts, and to find a way to benefit from the facts beyond change.

SENTENCING ALTERNATIVES AND PLEAS TO MEET CLIENT OBJECTIVES

Your case is all about your client, not about you. Develop enough trust with your client early on, so that your relationship does not tailspin when discussing the necessity of a two-prong approach of preparing for trial and preparing for a possible sentencing.

Find out your client's main goals. Some clients want to avoid jail at all costs. Some are willing to do some jail time to save their driving privileges or to get a conviction that will not harm their career as badly.

DWI defendants who are not Virginia-licensed cannot get restricted licenses. Consider seeking a plea to an amended charge of reckless driving. For marijuana defendants, consider seeking a plea to an amended charge of drug paraphernalia possession (read the paraphernalia statute first).

Arrange early for access to work release programs, drug and alcohol treatment programs, and home detention. Advise complete abstinence for clients accused of alcohol and drug offenses. Provide objective evidence of abstinence (e.g., weekly clean urines for drug defendants). Consider showing the prosecutor and/or court the voluntary advance completion of many hours of community service and, where applicable, substance abuse programs.

Ask your client's citizenship. Vancouver residents sound like people from Kansas. Ask.

Whether or not ineffective assistance of counsel standards look at immigration advice, your client is putting the client's liberty into your hands. Help your client.

Most felonies and many misdemeanors (including theft-related crimes and assaults on household members) present severe risks of deportation, inadmissibility to the United States, and hurdles to adjusting immigration status. If you're not an immigration practitioner, consult with one. Consider pleading to amended charges that present lesser immigration risks.

Accompany your non-citizen client to probation intake meetings. Talk with your client in advance about what to do if the probation agent asks the client's immigration status. To confirm the client is not a citizen may invite a call from the probation office to the immigration authorities if the probation official thinks a deportable crime is involved. If you refuse to answer, insist that immigration status is confidential, and that the confidentiality is protected by federal law. Maybe refusal to answer will make the matter more likely to slip through the cracks; maybe not. Overseas-born people sometimes are not even sure of their immigration status, with all the bureaucracy, complexity, and paperwork of immigration practice and procedure.

The prosecutor is our adversary. Beware losing client trust if the client thinks the defense lawyer cares more about being friendly with the prosecutor and judge than in aggressively fighting for the clients' rights.

The best plea arrangements are obtained by aggressively preparing for trial. In District Court, on the trial date, determine whether the prosecutor even has the necessary evidence and witnesses to make the case. In Circuit Court, make an independent assessment whether the prosecutor will be able to assemble the necessary witnesses and evidence.

Negotiate based on goals rather than positions. (Read Getting to Yes by Fisher & Ury, and How to Argue and Wine Every Time by Gerry Spence). E.g., if the prosecutor wants restitution, then consider restitution payment as a condition to dismiss the case after a few months or after full payment, on an agreement of sufficiency of the facts. Seek the least onerous way to harmonize the sides' goals.

Offer for the prosecutor to hear (in writing or orally) from your witnesses. If the prosecutor refuses to listen, then be prepared to challenge the prosecutor's failure to fulfill the prosecutor's duty of getting to the truth and serving justice.

The whole process is largely or fully a mystery to your client. Keep the client fully advised and informed about the case. Speak regularly with the client. Try to spend human-to-human, non-lawyerspeak time with the client. Learn your client's fears, acknowledge them, and help your client work them out.

Give the client a copy of everything you file, discovery, and the prosecution's filings.

Your client's family members often will ask you about the case. Sometimes they have the client's best interests at heart; sometimes they don't (e.g., where a co-defendant also is a family member). Work out with the client about how much to keep them in the information loop.

Issue them early, and assure that they have been served. If your case gets postponed on the trial date, ask the judge to have your subpoenaed witnesses promise to return without needing to be issued new subpoenas.

For DWI cases, subpoena the breath test operator's presence and the operator's notes. In reply to the prosecutor's motion to quash the subpoena for the notes, on the basis of the operator's being a state agent, reply as follows: Judge, nothing in the law requires the breath test operator to be a police officer. The prosecutor cannot have it both ways by both shielding the breath operator from subpoenas and being able to call that person as a witness. Moreover, breath testing is a ministerial task and not a law enforcement task, so the work is not being done in the line of police duty, thus making inapplicable here the general rule that state agents' documents cannot be subpoenaed.

For drug cases, subpoena the presence of the chemist and the chemist's notes.

Aside from death, most people are the most terrified of public speaking. Help your witnesses overcome this fear by, e.g., focusing on looking at the questioning attorney when s/he speaks, and then looking at the jury or judge when answering.

Most people in society lie more than in a blue moon. Convince the witness that any lying will harm the defendant, will cause defense witnesses and evidence to impeach each other, and will bring the risk of a perjury conviction. Convince the witness to have enough confidence in you to know that you will do whatever possible to rehabilitate the witness's testimony on redirect examination.

Practice the testimony with the witness; do not just give a list of possible questions. Try to recruit another attorney to play the role of the prosecutor, both for objections and for cross examination. Tell the witness that the judge may interject questions, as well.

Criminal defense lawyers are on the side of the angels. We can win, by advance preparation, preparation, and preparation; persuasion; and passion for justice and for victory. Love your client; love winning; and love justice. Never lose your passion for justice.

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