Magistrate Judge Kimberley Knowles is now presiding over DWI/DUI cases in Room 116 of D.C. Superior Court.  She takes over from Judge John McCabe, who was sworn in as Associate Judge in December.

Born and raised in the Bronx, New York, Judge Knowles received her Bachelor’s degree from Cornell in 1992 and her law degree from Howard University in 1996.  She served as a judicial law clerk to Judge Eric Washington after graduating from law school, and then worked as an Assistant U.S. Attorney until she was appointed to the Court in 2010.

The judge refused to allow the prosecution to call an expert witness in a trial scheduled for this morning after the government failed to provide the required notice.  I also sat in on part of a breath test refusal case this afternoon.  We will have to see how she comes out on the Bullcoming issues raised by cases in which the government seeks to introduce a urine test.

How can you not love the criminal defenses?

With the government burdened with proving every element of an offense beyond a reasonable doubt, one criminal defense strategy is to challenge the identity of the perpetrator. Yes, says the defense lawyer in an alibi defense. I am sure the crime was committed, and wasn’t it a particularly egregious one at that? But it wasn’t my client who committed it. He was across town at the time of the offense, and here are the three witnesses who can prove it. Or, in the related defense of mistaken identity, my client simply looked like the man who committed the crime. The complaining witness never got a good look at the man who did it, and was mistaken at the time of the photo array.

Moving along the continuum are the defenses which challenge other elements of the offense. Some focus on the actus reus – the “guilty act.”  Yes, my client was present at the time of the drug sale, goes the “mere presence” defense. But there were other people who actually participated in the transaction. My client was an innocent bystander. Or, yes, my client was driving the car but he wasn’t intoxicated at the time of the accident.

Others focus on the mens rea – or “guilty mind.”  While my client may have been driving the car, he had no way of knowing that it was stolen. Or, yes, he physically took the money. But, because he was intending to return it to its proper owner, there was no criminal intent.

Finally, toward the other end of the continuum and the topic of today’s blog entry, are the criminal defenses falling under the general categories of either justification or excuse. In either of these cases, the defense lawyer does not challenge the identity of the person who committed the actions. Nor does the lawyer question whether or not the defendant’s actions meet the elements of the offense(s) with which the defendant has been charged. He acknowledges that they do. What he does argue is that the defendant’s actions were either justified or excused in some way, thereby bringing the defendant’s actions out of the realm of criminal behavior.

A justification defense, according to Wayne LaFave, is one that takes otherwise criminal conduct and explains it in a socially acceptable context as deserving “neither criminal liability nor even censure.”  The example LaFave uses is one we all learned in law school:  A man burns a field to create a firebreak, thereby preventing a raging fire from spreading to nearby homes. This could be arson. It could be malicious destruction of property. Or it could be an act of heroism, justified by the need to prevent a greater harm.

Self-defense is probably the best known of the justification defenses. Yes, the defendant inflicted serious bodily injury on the complaining witness but the complaining witness was the aggressor in this case and the defendant, in fear for his life, was merely protecting himself. Critical to a justification defense is the concept of proportionality; society is willing to forgive the defendant for his actions only if he uses the amount of force or causes the degree of destruction that is reasonably necessary. Going beyond what is minimally required brings the act back into the realm of criminal behavior deserving sanction.

Also falling within the category of justification are the criminal defenses of duress and necessity. Duress is when the pressure applied on the defendant is caused by humans. Rob this bank, the Jesse Eisenberg character is told in the recent movie “30 Minutes Or Less,” or we will detonate the bomb strapped to your body.

Necessity is when the forces compelling the defendant to criminal action are physical or natural. Writes LaFave:  “The pressure of natural physical forces sometimes confronts a person in an emergency with a choice of two evils:  either he may violate the literal terms of the criminal law and thus produce a harmful result, or he may comply with those terms and this produce a greater or equal or lesser amount of harm.”

The example we learned in law school, albeit in the torts context, was the sailor who, finding himself at sea during a sudden storm, takes safety at a nearby dock. The sailor should still be held civilly liable for any damage his unauthorized use of the dock may have caused. But, because his actions were justified in face of the pending danger, he should not be held criminally liable for trespass or destruction of property.

Finally, there is the criminal defense of excuse. In this case, the lawyer does not deny that the government has been able to make out every element of the crime. Nor does the lawyer attempt to justify the defendant’s actions by blaming some outside force, either human or natural.  Instead, the rationale for avoiding criminal liability in this case comes from some defect within the defendant himself, some disability that serves, in Wayne LaFave’s language, as an “excusing condition.”

According to LaFave, in order for such a disability to excuse what would otherwise be criminal conduct, the defense would need to prove either that the defendant’s conduct was not a product of voluntary effort; or that he failed to understand the nature and consequences of his conduct; or that he did not know that his conduct or its results were wrong or criminal; or that the defendant was so lacking in control over his conduct that it would not be proper to hold him accountable for it.

The most widely known defense under the “excuse” category would be the insanity defense. This defense, says LaFave, is quite different from other defenses; the result, if it is successfully interposed, is not outright acquittal and release of the accused but rather a special form of verdict or finding, usually followed by commitment of the defendant to a mental institution. But this will have to be the focus of a separate blog entry.

H/T Ruth Hamburger

It is never easy to plead guilty. As the cliché goes, if you plead guilty, there is a 100% chance that you will be found guilty. Nobody likes to stand up in open court and admit to a list of terrible actions recited by the prosecutor. And the greatest expressions of regret I hear from defendants are often based on their decision to plead guilty in an earlier case. Yes, I pled to that, a defendant will say upon a review of his criminal history. I don’t know why I allowed my lawyer to talk me into it.

Not surprisingly, second thoughts are not uncommon, and some defendants who have entered a guilty plea will later change their mind and seek to withdraw it. While this is certainly possible to do, the timing of the attempted withdrawal is critical: It is much easier to withdraw the plea before sentencing.

The court conducts a lengthy colloquy with the defendant as part of the plea process. Do you read and write English? How far did you go in school? Are you under the influence of any drugs, alcohol or medication that could Has anyone pressured you or promised you something in exchange for this plea? Do you have anything to add to or change about the facts as the prosecutor has just read them? And so on, culminating with the final question: How do you wish to plead, guilty or not guilty?

While the primary purpose of the colloquy is to make sure that the defendant’s waiver of his constitutional right to trial is knowing, intelligent and voluntary, it also makes it more difficult to withdraw the plea later. As one judge put it: Were you not paying attention when I asked you all of those questions? Were you lying to me when you told me under oath that you had committed this offense?

According to Rule 11 of the D.C. Superior Court Criminal Rules, the only time a guilty plea can be withdrawn after imposition of sentence is to correct a “manifest injustice.” By contrast, the D.C. Court of Appeals has held that, in deciding whether or not to grant a defendant’s request to withdraw a guilty plea before the sentence has been imposed, the judge is to consider whether “if for any reason the granting of the privilege seems fair and just.” Bennett v. United States, 726 A.2d 156 (D.C. 1999). This is a fairly liberal standard.

The Court has also held that on “fair and just” motions, “leave to withdraw a guilty plea prior to sentencing should be freely allowed.” Gooding v. United States, 529 A.2d 301 (D.C. 1987). The three factors the court will look at in making its determination are: (1) whether the defendant has asserted his legal innocence, (2) the length of the delay between entry of the plea and the expression of the desire to withdraw it, and (3) whether the defendant has had the full benefit of competent counsel at all relevant times. Pierce v. United States, 705 A.2d 1086 (D.C. 1997).

So what leads a defendant to decide he wants to withdraw a guilty plea that, according to the record at least, was so freely and voluntarily entered into? Although there are many different reasons a defendant might have second thoughts about a plea, the two major causes, if I had to guess, would be (1) a breakdown in communications between lawyer and defendant, and/or (2) a lack of trust within the attorney-client relationship. And this is why, although I do not have the empirical evidence to back this up, I would imagine it happens far more frequently in court-appointed cases. It is not that public defenders and court-appointed lawyers do not work just as hard privately retained lawyers. It is that, consistent with the cliché that you don’t value what you don’t pay for, they do not enjoy the same degree of client confidence.

One of the first things they told us during the training for court-appointed juvenile cases was that we should never allow ourselves to become co-opted by the system.

My first reaction upon hearing this was:  What the heck are they talking about?

My only previous experience with juvenile cases had been in Philadelphia, and it was not a good one.  It wasn’t, for example, that you couldn’t get probation officers to return your phone call; it was that, because of overloaded phone mailboxes, you couldn’t leave a message to begin with.

By contrast, the system seems to work here in D.C., at least by comparison. The judges genuinely care about the juveniles and are willing to take whatever time is needed to try to arrive at the right outcome.  Probation officers not only return their phone calls, they work with you and your client to help the juvenile succeed.  I have yet to encounter a gung-ho, law-and-order type prosecutor you see in so many other places. And, based on much more limited experience, I have even been impressed with some of the personnel from the much-maligned Department of Youth Rehabilitation Services (DYRS).

In other words, defense lawyers who complain about the system in D.C. – and, yes, there will always be problems — may not realize how good they have it.

The second and related piece of advice they gave us is that you can never forget your role as advocate for the client’s wishes.  Assuming that the juvenile is not mentally incapacitated in some way, you are not to substitute your own conception of the client’s best interests for what the client tells you he or she wants.  If the client tells you he or she wants to go home, that is the outcome you work to achieve.

Recently, I represented a client during a very emotional hearing to determine whether he would be committed to DYRS after he was found guilty of multiple offenses. While I have complained before about the “one court, one family” system in D.C. that puts the juvenile and his siblings in front of the same judge each time a new offense is charged, this time the system seemed to work to my client’s advantage. It meant that the judge clearly knew my client, his family, and his circumstances very well.

The mother stood in court and yelled at the judge. She felt disrespected. She left the courtroom and came back, and then sobbed quietly as the rest of us stood in respectful silence. Mom, said the teenager. Stop it. You are embarrassing me.

Take a moment to collect your thoughts, the judge told the mother.  And then tell me everything you want to tell me.  I will not interrupt you.

Although the outcome – transferring legal custody of the juvenile from the mother to DYRS – seemed inevitable, getting there was not an easy process for anyone.  I also knew deep down that it was the right one, no matter how hard I worked as my client’s legal advocate to oppose it.

Some kids do fare better out of the home.  I am a parent myself. I know how difficult it can be to raise children in even a two-parent household. Imagine living at well below poverty rate without any water or electricity in the home, with a mother who is dealing with her own mental health and addiction issues, shootings that happen regularly, drugs sold on the street corner, and a school system in which the teachers do far more discipline than education.  In some cases, it is not a question of if the child will be picked up by the police; it is a question of when and how many times.

And when the middle-aged woman from a suburb in Maryland – a black June Cleaver — stood up before the court and talked gently and forthrightly about the foster home she could provide my client (the tree-lined neighborhood and yellow school bus, three steady meals, and his own room), I wanted this for my client. Even if I never said so.

There is a certain simplicity to the defense lawyer’s role in juvenile cases that I suppose you could find reassuring. Since the system only works when every player performs his or her assigned role, it means that you can pursue the client’s wishes without worrying about whether or not you are doing the right thing.  The agonizing is left to the judge.  Hopefully he arrives at the right decision.  Even if that decision is not the one you argued for.

[Disclaimer:  I should note that, as always, the people I describe on this blog are composite characters, based on real people I have either represented or seen.]

A former colleague in Philadelphia said that he was surprised, upon beginning work at the public defender’s office there, how many clients asked him if he was Jewish.

“Yes I am Jewish,” he said finally to one client.  “Why do you ask?”

“It’s because I want one of those Jew lawyers,” the client responded.  “I hear they fight really hard for you.”

I was reminded of this story yesterday upon reading an article at the Orange County Weekly about our pal out in California, Brian Gurwitz. It turns out Gurwitz has been representing a white supremacist named Christopher Brown.

According to the Weekly, Brown is “a convicted felon, a member of a criminal street gang, a burglar, a thief, and, if the police are right, a violent white supremacist Skinhead.”  The 88 tattoed on his chin is some type of code for “Heil Hitler” and the “1” and “4” under his eyes refer to the importance of maintaining racial purity.

Despite these views, Brown apparently does not allow his political views to interfere with his personal life.

While awaiting trial in a Santa Ana jail for hurling racial epithets during a robbery, Brown “fell in love” – i.e., had a sexual relationship – with a female prison guard who is African American:  “Sources tell the Weekly that the sex happened at least 20 times and included every type of intercourse imaginable.  The passion allegedly even took place inside a guard station.”

But the major surprise, according to the Weekly, is that Brown “chose for his upcoming March trial a – drum roll, please – Jewish criminal defense lawyer.”  This is where Brian Gurwitz comes in.  Writes the Weekly:

Tustin-based attorney Brian N. Gurwitz is a former high-ranking prosecutor who played key roles in the grand jury investigation into the Orange County Jail murder of John Derek Chamberlain, the Haidl Gang Rape trials and the corruption prosecution of Assistant Sheriff George Jaramillo.

I called Gurwitz and asked him if Brown knows he’s Jewish.

“Of course,” replied a laughing Gurwitz.

Gurwitz’ involvement in this case brings to mind the African-American lawyer David Baugh who represented a member of the Ku Klux Klan in the famous free speech case, Virginia v. Black.  Like Chris Brown out in California, the Klan member apparently had no problem reconciling his political views with his personal interests.  Baugh says that, when he called the Klan member to offer his legal services, the Klan member accepted almost immediately.

“You do realize, sir,” Baugh said, “that I am black.”

“Yes, I know that,” the Klan member replied.  “And I hear you are also a very good lawyer.”

Scott Greenfield is gone.

He must have planned this in advance. How else could he have achieved the perfect symmetry of ending the blog exactly five years to the day of posting his first entry?  At the same time, whether or not he told anyone else about his plans, it is clear he did not tell what would appear to be his closest friends in the blogosphere. They too were left speculating on Twitter about the meaning of his enigmatic last entry.

Greenfield could be exasperating. That is why I read him every day. He could insult, criticize, and rant. The next moment he could produce one of the most honest and insightful blog entries you had ever read. Take a position, he advised. Stand for something.

The signs, I realize now, have been there for a while. He continued to write on variations of his favorite themes:  integrity, loyalty to clients, mentorship, and the future of the legal profession. But, looking back on it now, a certain wistfulness had begun to work its way into his writing. He wrote recently about a malaise afflicting the blogosphere.  And, repeating a theme he had expressed earlier, his final entry notes how new bloggers were covering the same issues and themes he has been writing about for five years now:

They wrote good posts, and they did so without any clue that anyone had discussed the same issues before them.  It dawned on me that I’ve gone through another circle, as happens when we get older.  Every year, maybe day, new people come into the blawgosphere and it’s a rebirth, where everything old is new again.  As this thought occurred to me, I realized that my work is now part of the old, forgotten blawgosphere.  This is probably how it should be.

Of course, I got it all wrong when I first read this. While other people were bemoaning his departure, I was telling them that they were all idiots and that they were misinterpreting what read to me as simply a reflective anniversary post.  I couldn’t imagine a morning when he wasn’t up at 5:00 am, cranking out three blog posts –seven days a week — before the rest of us had drunk our morning coffee.  And, I said, do you really think he would end five years of blogging with a video of a dolphin?  As it turns out, he did end five years of blogging with a video of a dolphin.

I owe more to Greenfield than I probably care to admit.  He gave me a shout out during the early days of my blog, lending my blog at least the veneer of respectability within the criminal law blogosphere.  And the good thing about any praise from Greenfield – doled out in such a miserly fashion – was that you always knew it was genuine.  His kind words recently – almost two years after I was banished from his blogroll as a self-promoting marketer — meant far more to me than any ABA award.

At the same time, however much I basked in the praise, it was the criticism – the cryptic emails and blog comments before he threw up his hands in despair and gave up on me — that I appreciated most, however much the criticism stung.  It made me a better writer.  It made me think twice before I posted anything.

With the RSS feed now quiet, I think of an astronaut untethered in space and turning like a planet. Thank you, Scott Greenfield, and goodbye.

Guest Blog By Raymond Koehler

My initial enthusiasm at being invited to write a piece for my brother’s law blog quickly turned to concern.  I am a Latin teacher, not a lawyer, and although I often find myself citing my brother in defense of my subject before the incoming hordes of freshmen – twenty-seven to a class – I find my victories only fleeting. You see, I teach at the only school in New Haven that requires a year of Latin for graduation. After subduing the cries of “it’s a dead language” and “we’ll never use it,” I say with as much dignity as I can muster:  “My brother, who is a lawyer, said that his two years of high school Latin were the most valuable he ever took. He says they prepared him not just for college, but for life!”

My students look at me quizzically for a moment, weighing this new argument as they visibly size up just who this new witness for my defense is. Then one or another of them renews the attack and I go home quoting my younger brother to myself in an effort to convince myself of the value of my subject. This is not always an easy thing for an older brother to do.

The truth is I never really thought about the value of Latin. I just studied it, along with ancient Greek, for itself. But now that I have so generously been afforded this new forum in which to build my defense, it would be a waste if I did not at long last try to do something useful with my classical education. Therefore, not only will I use this opportunity to put together a stronger case against my students, I will attempt to have an effect on the minds of those who make up our modern legal system, especially my frater, through meaningful connections between legal ideas as we think of them today and the actual Latin words used to preserve them. Of course in today’s world of education a sine qua non for any language instruction is an exploration of the lives and culture of those who use that target language. I suppose that principle must be applied equally now not just to living languages, but to dead ones.

As I am now thinking of this as the first in a series of entries, it seems obvious that the best place to begin is not with technical legal terms, but with a simple look at the Latin word for justice itself – iustitia.  When my students can’t find it, it is usually because they are looking under the wrong letter of the alphabet. It wasn’t until the 17^th century that the letter “j” was established to separate the two uses of the Latin “i,” one as a vowel and the other as a consonant.  Hence the 10^th letter of our alphabet and hence I will use justitia from now on when talking about that condition or state of what is right or lawful – even if my students must still remember to look it up under “i.”  Presumably all relevant law dictionaries were published post -17^th century.

The most popular Latin phrase containing this word is Fiat Justitia Ruat Caelum. This maxim on the urgent necessity of justice was discovered first not by myself, the Latin teacher, but by my brother, the law student. He called home and shared it with the man who had, so many years earlier, forced Latin upon him — our father. “Let Justice prevail,” our father translated, “though the heavens may fall.” Besides being a good phrase for teaching the hortatory subjunctive (Let Justice be done) and the potential subjunctive (though the heavens may fall), it is a great umbrella philosophical statement under which any future entries (my brother willing) might fall.

My brother, it turns out, was not the only one to embrace these words in part or as a whole. Fiat Justitia appears at the bottom of the 1835 portrait of the Chief Justice of the United States John Marshall by Rembrandt Peale, which hangs in a conference room at the Supreme Court Building in Washington.   It is also the motto of the Massachusetts Bar Association, appearing on the official seal of the institution. The maxim in its entirety, historians claim, was applied to fathers other than my brother’s and my own, such as those who inspired the American colonies to break from the British crown.  Then years later, in 1933, Judge James Edwin Horton quoted it when explaining why he made his decision to set aside the death sentence of Haywood Patterson, a black man wrongfully convicted of raping two white women in Alabama, although he knew it would be the end of his judicial career. Fiat justitia caelum ruat even finds its way into movies, such as the Oliver Stone 1991 film JFK in which New Orleans District Attorney Jim Garrison (Kevin Costner) uses the phrase during his investigation into the assassination of President Kennedy.

I was thus surprised that this quote, when I called my brother to tell him what I was doing, failed to elicit that same enthusiasm it had years ago. It is understandable, of course, that a student’s ideas, formed as they sometimes are in the ivory tower, lose some of their ideological purity when tested in the various arenas of real life, and there had been a number of years (I won’t say how many) intervening between school and current practice. Nevertheless this led me to look further into the origins of this saying and, to my own surprise, my investigation turned up two separate origins that had at some monumental historical moment come together.

The tail end of the first thread is a story we are probably all familiar with from our own childhood – the story of Chicken Little. This story goes back to Aesop’s Fables and the fable “The Sky Is Falling.” This theme also appears in a passage from Terence, a Roman playwright of the 2^nd century B.C., suggesting its popularity among the early Romans. Of course we can also recall images from our early study of Greek mythology where  Atlas, supporting the sky on his shoulders, tries to trick Hercules into performing this duty for him.  But my favorite reference goes back to the campaigns of Alexander the Great.  According to the story, when Alexander asked several ambassadors of the Celtae — tall, haughty men from the Adriatic Sea — what they feared most, they responded “that the sky fall on our heads.” Unless we look upon these “barbarians” as childlike in their conception of the universe, one can conclude they were directly insulting Alexander’s power by saying that nothing, short of a total destruction of nature, could harm them.

To look at the first thread of this maxim, Fiat justitia, I would like to relate a story told by Seneca, a Roman philosopher and dramatist who, by the way, was also entrusted with the moral training of Nero during that emperor’s  early education. In his treatise De Ira (On Anger), Book I, Chapter XVIII, Seneca ells of Gnaeus Piso, a Roman governor and lawmaker who, angered by the news that a soldier had returned from his leave of absence without his comrade, ordered his execution.   Leaves were granted in pairs throughout the Roman empire for obvious reasons of safety, and the grounds given for such a sentence was that if the soldier could not produce his companion, he could be presumed to have killed him. However, in this story it so happened that, as the condemned man was presenting his neck to the executioner, the comrade who had been presumed murdered, suddenly appeared. The centurion overseeing the execution stopped the proceedings right there and brought the condemned man back to Piso in anticipation of a reprieve. The Roman governor, however, ordered the execution of all three soldiers, the first because his sentence had already been passed, the second for failure to perform his duty in carrying out the original execution, and the third, the man who had just returned after being presumed dead, because he was the cause of the death of two innocent men.

This application of “Justice” in the pursuit of Justice, or even justice, where the use of principals perhaps technically correct result in something so obviously wrong, has most likely been played out in modern arenas as well. Such dramatizations of Fiat iustitia, I will wager, are responsible for this second, negative interpretation of Fiat iustitia ruat caelum and the reason that the Latin maxim which my brother had enthusiastically called home about so many years ago had lost some of its luster.

So what, then, is justitia? How does one find it when watching students turn over their bookbags to be searched every morning as they enter school and go through the metal detector? Is this the justice that came from the prosecution of Eric Harris and all those other children who harmed their schoolmates, teachers and themselves? Or do we try instead to bring to justice the doctors of such students who should have known that the administration of such chemicals as, in Eric’s case, luvox, to someone a little out of touch with reality might very well lead to such atrocities.

I think that if there is an answer it goes back to the confusion between ethics and justice that is now even preserved in dictionaries but which can be cleared up if we dig out the origins of these words. Ethics comes from the Greek word ethos meaning “character.”  Justice, we already know, comes from the Latin adjective iustus meaning “right,” which comes from the Latin neuter noun ius, iuris meaning “law.”  We can imagine a group of early people, whether the early Greeks, Romans or those barbarian Celtae living near the Adriatic Sea, all engaged in the activity of living. In fact, I would bet that their natural “character” was such as to make them engage in activities leading not only to their survival as individuals but to that of their families, groups and maybe even the entire human race. But what do you do when people begin to act “unethically” or “out of character?” When they actually bring harm to themselves, their family or their group? The first step, it seems, would be to, using reason, re-establish the person’s own ethos, to help him or her “find him- or herself” again.  But ethics, being natural, cannot be forced on one. If it is, it is not ethics but justice. And so it is here, out of the labor pains of getting others to apply ethics to themselves, that justice is born. When reason fails and an individual can no longer engage in ethical behavior voluntarily, then the group in fact must take action if it is to persist and so justice systems spring up — like the goddess Minerva who sprang fully armed from Jupiter’s head — in every corner of the earth. The trouble is, of course, as evidenced by our story of the Roman governor Piso, when applied by a man of anger or one not of good will, justice soon becomes “justice” and another civilization goes by the boards.

So what does this all mean? In my imagination I can picture warring factions all led by men not of good will reducing our planet, in the name of justice, to a smouldering pile of rubble. In this same fantasy I hear some sky god, perhaps Jupiter, laughing jovially before pronouncing from Mount Olympus (in Latin of course), “Fiat iustitia ruat caelum.”

But to be honest, I have another picture in mind for how I would use this Latin maxim. You see, I imagine my students – raw and uncultured as they may be – someday all making it to Latin III. When they do, I will have to solve that Latin teacher’s problem of how to teach them the formidable Latin Result Clause. As all empires, even that of the mighty Romans, have come crashing down for the lack or misapplication of iustitia – or justitia – my success depends on two things. Firstly, it depends upon men and women of good will, such as my brother and sister-in-law, preserving justice long enough so that the sky does not come down before I fulfill my goal.  Secondly, I must modify the Latin maxim slightly, from Fiat iustitia ruat caelum to Fiat iustitia ut non ruat caelum, or  “Let Justice prevail so that, as a result, the sky does not fall!”

Men and women have dreamed dreams greater than mine. I draw comfort from the fact that the same conditions necessary for me to accomplish my goal are a vital necessity if those of greater aspirations are to fulfill theirs.

Assuming you did nothing to encourage or instigate the activity, there is nothing illegal about being present during the commission of a crime. There is also no duty, upon coming across a crime in progress, to prevent that crime from occurring. This is true even if you are with people who are actually committing the crime.

These principles lay the basis for what has always been one of my favorite defenses:  mere presence.

In what is probably the most widely cited case on this defense in the District, Acker v. United States, 618 A.2d 688 (D.C. 1992), the complaining witness was standing outside a liquor using a pay telephone when the defendant and a number of other people drove up.  The defendant – who knew the complaining witness from high school – commented on a gold chain the complaining witness was wearing:  What’s up, Grooms, he said. Looks like you’re making some money.

At some point, depending on whose version of the story you believed, one of the defendant’s companions came up behind Grooms and “popped” the chain from Grooms’ neck. When Grooms attempted to get it back, the companion stuck a black object into his stomach and told him to go back to the phone. Grooms turned to the defendant:  “Are you going to let this happen?”  The defendant simply turned away, got back into the car, and drove off with the other men.

Overturning the defendant’s conviction, the D.C. Court of Appeals held that “mere presence at the scene of a crime committed by someone else, even with knowledge that an offense has been committed is insufficient to sustain a conviction as an aider or abettor.”  The court reviewed another case in which the defendant was observed “gazing around the shop” as if acting as a lookout while a companion concealed merchandize.  In this case, by contrast, there was not enough to suggest that the defendant’s greeting to Grooms was anything more than a “jovial quip.” Even if the defendant did nothing to “frustrate” the robbery, “we know of no case  . . . which imposes a duty of rescue upon an inadvertent witness to a crime, particularly when one of the criminals was apparently carrying a handgun.”  Nor did the evidence suggest that the defendant “facilitated the getaway of the culprits” — one of the other men did the driving.

In another case, In The Matter of L.A.V., 578 A.2d 708 (D.C. 1990), the juvenile defendant was with another man who, when approached by police, took out a handgun from his coat and attempted to hide it behind the wheel of a parked car. Presence is equated with aiding and abetting, the court pointed out, when “it is shown that it designedly encourages the perpetrator, facilitates the unlawful deed – as when the accused acts as a look-out – or where it stimulates others to render assistance to the criminal act.”

In reversing the defendant’s conviction in this case, the court held the defendant had neither actual nor constructive possession of the firearm. Given the positioning of the defendant’s body, he could not have been attempting to shield his companion’s actions from the view of the approaching officers. Finally, the defendant could not have been acting as a lookout since both he and the other man were already aware of the officers’ presence.

Although lawyers are famous for obsessing over the smallest details, it was not until I became a lawyer myself, having lived most of my time on this earth as a non-lawyer, that I could begin to appreciate why. It is because the stakes are high. And it is because we take a very dim view of people. If there is a mistake to be made, we expect them to make it.

Last week I wrote about a client who was found guilty of driving under the influence in Virginia. While I will occasionally direct a client to the clerk’s office to take care of the paperwork herself, this time I accompanied her. I am sure I came across to the young woman in the clerk’s office as the typical overbearing lawyer.  The question for me was not whether a mistake would be made; it was which mistake would be made. And this was in Virginia, too, where things normally run pretty smoothly and my client was a sophisticated person who knows how to navigate the system.

Anticipating and attempting to prevent the errors is not only good service for the client; it is also a matter of simple self-interest:  It is always far easier to prevent the error in the first place than it is to rectify the results of that error once the error has been made.

In anticipation of a potential loss at trial, I had already filled out most of the forms the day before. But there are some forms only the person at the clerk’s office can fill out.  Therein lies the problem.  As Gisele Bundchen, Tom Brady’s wife, complained after the Patriots’ loss to the Giants in the Superbowl, her husband couldn’t throw the ball and catch it too.

This was not the problem I sometimes experienced in Philadelphia in which none of the clerical people seemed to care about anything.  In this case, we had a friendly clerk who seemed to be doing her very best to make sure things went the way they were supposed to.  But even then, the wrong box was checked, and when my client turned herself in on Friday evening to begin serving her jail-time on the weekends, expecting to be put in with the weekend crowd, she was told she would be serving straight jail-time with the general prison population.

By the time I got the phone call from a very upset client Friday evening, it was too late for me to do anything that day to rectify the problem.  No worries, I said.  I’ll be over at the courthouse when it opens on Monday to straighten this whole thing out.  We’ll get you out by the time you were supposed to be released anyway.

The same clerk greeted me on Monday morning. Remembering my client and me from the week before, she offered me a sincere apology. She had checked the wrong box. All she needed to do now was to check the right box and fax the amended form to the prison.

The clerk promised to fax the form as soon as possible. To the great dismay of the people standing in line behind me, she even agreed to fax the form while I waited. Because, as Gisele Bundchen found out, balls will be dropped. I made sure I had a copy of the amended form because, even after all the assurances from this very efficient and well-meaning clerk, something told me I would be needing it. I also called the booking office at the prison to let them know that the amended form was on its way.

Confident that the matter had finally been settled, I headed over to D.C. Superior Court and focused my mind on other things.  Imagine my dismay when at 2:00 pm I got another call from the client saying that she was still being held.

Have you talked with anyone in the booking office, I asked her?  The amended paperwork was faxed over to them this morning.  There was a brief moment of silence on the other end.  I haven’t talked to anyone, she said weakly.  I am in prison, you know.

Despite all of the fabulous insights I offer on this blog, it turns out that I am still very much in learning mode. In the future, I will take that amended form and deliver it personally to the prison. Release my client immediately, I will tell them, always very politely because there is nothing more fearsome than a clerical person who has been disrespected.  You have been holding her illegally since 8:00 o’clock this morning.