A Tale of Honey and Vinegar

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.

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

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.

The Appointment, Part 3.

[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”.

The Appointment, Part 2.

[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.

Stop Snitching on Yourself.

My next cards are going to look like this.

There is a space on my potential client interview form that prompts me to ask my potential clients if they gave any statements to the police, whether on the scene where they’re arrested or back at the station.

I am considering removing it, because it is useless.

Invariably, when I first ask them this questions, 9/10 clients say “No, man, I know my rights”. Great! I love when my clients know their rights. It makes my job a lot easier.

Then I start talking with my clients about what happened when they got arrested, and that “No” becomes “well, I guess I said it wasn’t me”. Or “I told them I didn’t have any drugs on me because I wasn’t a dealer, I was a user”. Or, my favorite “Why are you arresting me? I didn’t shoot anyone!”. Or “I just wrote down everything that happened, and I apologized for taking all the money”.

Folks, I have four words for you: “Shut. The. Hell. Up.”

The Appointment, Part 1.

“Mr Mulvihill, you’re appointed”.

The sound of the judge’s voice speaking my name startled me from my stupor. I’d been sitting in the courtroom for an hour waiting for the District Attorney in my case to show up.

Until a moment ago, I had been bored. All criminal defense lawyers are familiar with the “hurry up and wait” endemic to the system, and today had been no different.

It was June 10 at 10.03am. I’d been in the courtroom since 8.59am, intermittently checking my phone while waiting to have my case called so I could get back to the office and address the approximately 372 things outstanding on my to-do list. With no secretary or staff, all my administrative work was my own, and it was piling up every second I waited for the DA.

“Yes, Your Honor?” Because I was too busy looking at LOLCAT memes, I hadn’t caught what the Judge said. I hoped he didn’t notice.

“You’re appointed in Commonwealth versus Barnaby Jones. Trial date to remain, July 20 for a three-day jury. Mr Mulvihill, you’re attached, and it’s must-be-tried”.

July 20th?

A month away?

Fuck.

I felt as if I’d swallowed a lead brick.

Pa Superior Court: Mandatory Minimum Sentencing Scheme “Unconstitutional”

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.

–Leo.

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

 

Sometimes, our clients get ridiculous lawsuit threats…

View this document on Scribd

Sometimes, those ridiculous threats warrant an equally ridiculous response.

View this document on Scribd

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

Read more here: http://www.philadelinquency.com/2014/08/01/pdq-receives-lolsuit-threat-legal-dept-responds/

 

Are You “Experienced”?

Attorney advertising has been around as long as I’ve been practicing law, as have the Rules of Professional Conduct, which govern attorney behavior, including advertising.

In Pennsylvania, attorney advertising is governed by Rule 7.2 of the Pennsylvania Rules of Professional Conduct. As part of these rules, a lawyer may not use “inherently subjective terms” like “experienced” to describe their practice. This rule seems to be observed more in its breach than in lawyers’ adherence to it. Google “Experienced Pennsylvania Lawyer” (or just click that link) and you’ll see what I mean.

Winning Ugly

Judge Papov looked pissed.

“You’re really going to instruct your client not to answer the question and waste everyone’s time, Mr. Rushie?”
“Judge, you’re not giving me much of a choice here…”

The judge didn’t even bother to hear argument. He looked at me, looked at my older adversary, and made a decision as soon as we reached the podium.

A week ago I had instructed my client not to answer a question in a deposition because it called for privileged information. The other side filed a motion to compel a response.

Before coming to court I had done the research and written a brief on the issue, confirming that my instruction not to answer was appropriate. No judge in their right mind would force my client to divulge privileged information with 5th Amendment implications, especially when the case law was this clear, right?

Of course, this was discovery court, where the dreams of young lawyers go to die. When it came to justice or convenience, convenience always seemed to win out. At one point the judge mentioned “If you don’t like my decisions, maybe you should work out your disputes before hand.”

As the judge glared down, I think this was the last place in the world I wanted to be. It was 85 degrees, and was packed to the brim with dozens of lawyers hoping to be heard quickly and get out. I waited over two hours to be called. Until my hearing, the judge had been moving through his docket quickly, mostly making decisions that seemed almost arbitrary. For a brief second, pressed shirt now drenched with sweat, I pictured myself laying on a beach somewhere drinking a piña colada. I could hear the ocean.

Judge Papov brought me back to reality and bellowed, “Mr. Rushie, I told you once, and I will not tell you again. Instruct your client to answer the question. I don’t have all day.”
Gary turned and whispered in my ear. “We can’t give them that information, right? You gotta fight for me…” Gary was right.