The Break Up

January 29, 2015

tombstoneIt was a good run.

But ultimately, Jordan and I have decided our practices are taking us in different directions.

So after much discussion, a bit of Sarah McLachlan, a few boxes of tissues, some Crossfit (I hated it), and a brief custody dispute over our awesome furniture, Jordan and I decided to part ways effective Jan 1, 2015.

I’m continuing with a new entity, “Mulvihill LLC”, where I’m going to keep doing what I do, namely, defend my clients and be a thorn in the side of prosecutors (by the way, got another Not Guilty verdict today).

Jordan’s continuing to practice as “A. Jordan Rushie, Attorney at Law“, where he’s going to keep doing whatever it is he does (namely, wiping the floor with opposing counsel in poorly considered lawsuits against his clients. See, e.g. this).

But don’t cry for us, blawgosphere, as we both are going to continue to write here for PhillyLawBlog and be general pains in the ass. We still have a lot to say, whether you want to hear it or not. Don’t be strangers.

Hugs and Kisses. XOXO,

-Leo & Jordan

A Tale of Honey and Vinegar

January 9, 2015
Oh I'm just a little black rain cloud…

Oh, I’m just a little black rain cloud…

It was 11.30 am. I was standing behind defense table, arguing to have my client’s case dismissed.

I was also really pissed off. You see, I’d been waiting in court for the DA to be ready to put on their preliminary hearing.

Around 8.30 that morning, while the Court staff statused the cases for the day,  the District Attorney said “Your Honor, I have good contact with my witness, and they are on their way in”.

“Ok”, said the judge. “Witness hold”. She turned to me “Counsel, please come back at 10 for a status of witness”.

“Of Course, Your Honor” I said. The witness already hadn’t shown twice, and the case was marked “Must-be-Tried Commonwealth”—e.g., if the witness didn’t show up, the case would be dismissed. My client had been arrested five months prior and had been sitting in custody ever since on $100,000.00 bail. He was anxious to get out. I was anxious to get him out. I wanted to get this case over with. “I’ll be back around 10.00 Your Honor, thank you”, I said before I left the courtroom, off to the number of other courtrooms that commanded my attention that morning.

That was three hours ago. I’d taken care of my other cases in my other rooms, and I had been waiting since 10 for the District Attorney to come back. He’d walked in the room at 11.29.

The first words out of his mouth: “Your Honor, my witness can’t make it in today”.

Perfect. Read the rest of this entry »

Should I Start a Law Practice? (Redux)—Retrospective, Dec. 31, 2014

December 31, 2014
The Author with an Author

Sometimes real lawyers agree to slum it with the likes of me.

The practice of law is about relationships“.
-Me (And Brian Tannebaum, and probably plenty of other people much smarter than I am).

About two and a half years ago, Jordan wrote a post called “Should I Start a Law Practice?” It remains one of our most-viewed articles on this blog. Because it’s the end of the year,  rather than being creative and thinking of a new and exciting topic, I decided, now concluding my fourth year of practice, and having started as a true solo fresh out of law school, to revisit the topic Jordan discussed back in 2012. I’d intended to write this follow-up to his post way back then, but simply never got around to it.

My perspective is different that Jordan’s—partly because I graduated in 2010, when the market had tanked—and partly because I did not work at a firm before I hung my shingle.

Here’s my point: You should start a practice if you want to, and if you understand that the practice of law is all about relationships—with your colleagues, with your mentors, and with your clients.

Read the rest of this entry »

The Appointment, Part 3.

December 29, 2014

Screen Shot 2014-11-08 at 10.55.39 AM

[Ed.- This is part three of an ongoing series. It won’t make a lot of sense unless you read parts one and two.]

It was 11.13am. We had 19 days to trial. Barnaby Jones sat across the conference table in my office, and he was indignant.

“Mr. Leo, it wasn’t me! I swear They got the wrong guy!”

We’d been talking about this case for the last half-hour or so, and he was still giving me the same story. Every defense lawyer has heard it a million times. “It wasn’t me!” In defense circles we call this the SODDI defense — “some other dude did it” (it even has a Wikipedia entry). Mr Jones wasn’t the first client to give me this line nor would he be the last. Naturally, I was skeptical, especially in light of the Commonwealth’s discovery I’d reviewed since ADA Shea sent it to me yesterday.

“I understand what you’re saying, Mr. Jones, but you’ve reviewed that discovery I gave you, right? We have some big problems here. First, the police sat on your block for four days. They say they were 25 feet away, using binoculars, and saw you sell drugs on four separate occasions to a confidential informant. Additionally, they say that each time the confidential informant came back to them with crack cocaine they saw you sell to him. That’s bad. You get that, right?”

“Yes, Mr. Leo, I get it.” My client nodded.

“Then, to make it worse, the police got a warrant and raided the house where they said they saw you. In that house, they found over sixty grams of crack cocaine, 50 jars of PCP, and over one hundred grams of weed. They also found a picture of you and two other guys, which they bagged as evidence. That’s worse. You get that, right? They are putting you in that house!”

“They’re wrong though! I wasn’t selling drugs that day, Mr. Leo. I was USING drugs! The guy they saw wasn’t me. And I am not the guy in that picture!”

I looked across the table at my client, in silence, for a minute. He wasn’t getting it. I took off my glasses, folded them, and placed them to my right. I signed deeply and rubbed my face with my hands in frustration. “This guy”, I thought to myself, “straight up case of denial”.

Read the rest of this entry »

The Appointment, Part 2.

November 25, 2014

Screen Shot 2014-11-08 at 10.55.39 AM

[Ed.- This is part two of an ongoing series. For part one, click here.]

It was 10.11 am, and I was in the ante-room with my client, Barnaby Jones.

Mr Jones had been my client for all of 8 minutes now, and I had trial in a month, after his previous lawyer had sat on the case for four years. I’d just given him my spiel (e.g., I’m Leo, I’ve never been a prosecutor, I’ve always fought to the defense, I don’t treat my court-appointed clients any differently than my private pay clients, etc…).

Mr Jones was receptive to all this, and smiled as I shook his hand. I closed my elevator speech by taking out my business card.

“Mr Jones, take this. You and I have to talk. Soon. My office number is on the card, but here, let me write my cell on there…”

I don’t normally give my cell phone out to clients—for good reason. I’m not much a fan of getting calls at 10.30pm on a Saturday asking “So, what’s going on with my case?” (Answer: “Call me on Monday during business hours and I will let you know”.)

But with so little time to prepare, I had to get moving as soon as possible. I mean, we were scheduled for a jury in a month, I had literally no discovery, and I had three other courtrooms to be in that morning alone. The clock was ticking, and we needed to get started.

“Mr Jones, call my office when you get back home, and let’s schedule a time for you to come in this week to discuss your case. We don’t have a lot of time”.

He looked at me and nodded: “Yes, sir. But Mr Leo, it wasn’t me!” A familiar refrain for defense counsel.

“We’ll talk soon. Call me today”, I said as I walked out the door and down the hall to my next courtroom.

Read the rest of this entry »

Pa Superior Court: Mandatory Minimum Sentencing Scheme “Unconstitutional”

August 21, 2014

Appellant brings this appeal challenging the constitutionality of one of Pennsylvania’s mandatory minimum sentencing statutes, 42 Pa.C.S.A. § 9712.1, following the United States Supreme Court’s holding in Alleyne v. United States, U.S. , 133 S.Ct. 2151 (2013). We find that Alleyne does indicate that the sentencing practice under Section 9712.1 is unconstitutional.

-Judge Ford Elliot, August 20, 2014, writing for an en banc Superior Court.

Just yesterday, the Pennsylvania Superior Court released an opinion in Commonwealth v. Newman, that seems to provide some direction to divided Pennsylvania Common Pleas Courts left to fend for their own in the wake of the United States Supreme Court Alleyne v. United States decision.

Let’s break this down simply. In Alleyne, the Supreme Court held that all facts that increase a mandatory minimum sentence must be submitted to a jury and found true beyond a reasonable doubt.

In many states, Pennsylvania included, mandatory minimum sentences could be imposed by a judge who found certain facts to be true only by a preponderance of the evidence at sentencing.

Alleyne held this scheme unconstitutional.

Prosecutors in Pennsylvania have been fighting to apply mandatory minimum sentences ever since. But one by one, counties across Pennsylvania have been finding mandatory minimum sentences unconstitutional.

What Happened in Newman?

In Commonwealth v. Newman, the defendant was arrested following several controlled drug buys at an apartment in Glenside, Pa. Based on those buys, the police got a search warrant for the property, and found a “large quantity” of crack cocaine, drug paraphernalia, and a handgun a few feet away from the drugs.

The defendant went to trial, where the jury found him guilty of possession with intent to deliver, among other crimes. The prosecutor filed a “Notice of Intent to Seek Mandatory Sentence” under Pennsylvania’s gun & drug law, 42 Pa. C.S. §9712.1, which means a mandatory 5-10 years for a person found in possession of a firearm and drugs. The defendant was sentenced overall to 5-10 years.

He appealed, and the Superior Court affirmed his sentence on June 12, 2013. But just days later, on June 17, 2013, the United States Supreme Court released its Alleyne opinion, so Newman filed a petition for reconsideration, which the Superior Court granted.

Skipping over the legalese, after a review of trial court opinions from the Courts of Common Pleas across Pennsylvania, the Superior Court  in Newman ultimately found that “the very trial courts entrusted with the imposition of mandatory minimum sentences after Alleyne have found Section 9712.1 as a whole to be no longer workable[.]” Specifically, the Court found that the mandatory minimum sentencing provision at issue were not severable, and that under the statutory construction rules of Pennsylvania (1 Pa. C.S. §1925, Constitutional construction of statutes) the statute therefore as a whole must fail.

The Court then ruled that §9712.1 was unconstitutional, vacated Newman’s judgment of sentence, and remanded the case for resentencing “without consideration of any mandatory minimum sentence provided by Section 9712.1”.

What Does this Mean for Me?

If you’re not currently facing charges where mandatory minimum sentences may apply, then nothing, really.

But if you or a loved one is facing a case with a potential mandatory minimum sentence, then things change a lot.

Just today, I filed my first motion to bar application of a mandatory minimum sentence under 42 Pa.C.S. §9712.1 under Commonwealth v. Newman, in expectation of a hearing scheduled tomorrow in a client’s case.

We don’t yet know if the Commonwealth (the prosecutors trying to keep people locked up) is going to petition the Pennsylvania Supreme Court for allocatur (aka ask them for permission to appeal the Superior Court’s judgment), but we’ll find out soon.

I’ll be paying close attention in the meantime.

Congrats to Patrick I. McMenamin, Jr. for this victory for the people of the Commonwealth of Pennsylvania.


Update 2014.8.22: The Judge granted my motion without even requiring argument.


Sometimes, our clients get ridiculous lawsuit threats…

August 1, 2014
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Sometimes, those ridiculous threats warrant an equally ridiculous response.

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Bagels, anyone? [Ed: “Liable Per Se”? What’s that?]

Read more here:



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