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 »


Stop Snitching on Yourself.

November 14, 2014
My next cards are going to look like this.

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.” Read the rest of this entry »


The Appointment, Part 1.

November 8, 2014

Screen Shot 2014-11-08 at 10.55.39 AM“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.

Read the rest of this entry »


The Plea

December 3, 2013

It is Tuesday at 9.30am and I am in the booth.

The booth is a tiny box where I have the honor of talking to my client through an inch of bullet-proof glass. I say “talking”, though it’s really more like yelling, since it’s pretty hard to hear through that glass.

“Booth” is a misnomer too. “Booth” reminds me of the precursor to something fun. You buy tickets to a movie or carnival rides at a booth. No such fun was happening today.

Really, the booth is purgatory, a limbo my clients sit in after they’ve made their way from the prison and to the courthouse basement’s holding cells, but before they enter the courtroom where they await final judgment.

This particular morning, I am wearing a navy flannel Brooks Brothers No. 1 sack suit, a white shirt I freshly pressed at 5.30 that morning, and a somber tie that reflected my mood.

In gross juxtaposition, my client is in an orange prison jumpsuit and has a thermal on underneath to keep warm. I guess this hell follows Dante’s rules.

My client is a good man who’d recently made a series of terrible decisions, all of which led to where he is today. Despite his cock-ups, he was truthful and admitted his mistakes not only to his family, but to members of his community.

Then the police became involved.

And he got arrested.

And his mistakes became a “case.”

And that’s how we ended up on opposite sides of the same sheet of glass on Tuesday at 9.32am. Read the rest of this entry »


Free Legal Advice of the Day — STOP TALKING ON AVVO.

March 26, 2013

Today’s legal pro-tip: If you are a criminal defendant, or a potential criminal defendant — SHUT UP.

Don’t talk on the internet, even if you get “free advice” from professionals on the internet. Guess what? DAs read Avvo.com too.

So if you’re a criminal defendant, or a potential criminal defendant, do the following:

  1. Shut up.
  2. Don’t post on about your case on the internet. This means Avvo, Facebook, Twitter, MySpace, Instagram, Grindr — WHATEVER.
  3. Call an attorney immediately.
  4. Did I mention SHUT UP?

Talking on the internet cannot help you. It can, and will, only hurt your case.

You hire a lawyer, you get someone who’ll be the only person between you and a prosecutor gunning for your head.

In the meantime SHUT UP. Free legal advice on the internet is worth what you pay for it. Except this advice. This advice might just save your ass.

h/t Charles Thomas for the link to the Avvo question that inspired this post.


FOP President John McNesby Can’t Stop Saying Stupid Things.

December 7, 2012

[Ed. Aug 1, 2014. So, John, you’ve been pretty silent since this happened.]

FOP President John McNesby Can’t Stop Saying Stupid Things.

Yesterday, I posted about the officers whose testimony was so incredible that the DA didn’t want to call them as witnesses anymore. Veteran attorney Brad Bridge of the Defender Association remarked that the officers were “among the most troubled in the department.”

The officers,

  • Perry Betts;
  • Brian Reynolds;
  • Michael Spicer;
  • Thomas Liciardello;
  • Brian Speiser; and
  • Lt. Robert Otto

were named in several Internal Affairs investigations and civil rights lawsuits alleging the use of excessive force, false arrests, and filing false reports.

Unsurprisingly, the shit has now hit the fan. Yesterday, the District Attorney withdrew charges against two men who’d been charged with drug dealing — all because of the lying liars of the Narcotics Unit.

From today’s Inquirer:

Two men accused of drug dealing had charges against them dropped Thursday after their attorney told a judge that five Philadelphia antinarcotics officers involved in their case had “partnered with drug dealers” in crime.

According to the article, defense attorney Larry Krasner argued to Judge Charles Hayden that:

“There was a group of police officers who essentially partnered with certain drug dealers, and they partnered with those drug dealers to do things that were both illegal and outright crimes.”

The Assistant District Attorney Bret Furbur remarked:

 “[T]he [District Attorney’s] office, my higher-ups, have informed me the case is going to be withdrawn.”

Naturally, it logically follows that the DA realized there was a substantial credibility issue with the narcotics unit officers. Further, it makes sense that when you’re trying get convictions (as ADAs are wont to do), it helps to call witnesses who are believable. Since these officers proved wholly unreliable, why would the DA want to call them as witnesses any longer?

But instead of noting that maybe, just maybe, FOP5 should raise the bar and suggest that their officers take that oath to tell the truth seriously, McNesby points the finger at District Attorney Seth Williams:

“[District Attorney Seth Williams] has no idea how to run the office. He doesn’t know the ramifications of what he’s done. He’s not just gotten these guys transferred, he’s tarnished their careers.”

He must have a variation on Tourette syndrome, where the afflicted impulsively says stupid things all the time. He just can’t help himself! Blaming the DA for FOP5 officer’s poor conduct that renders them incredible — now that’s really incredible.

After I shook my head in disbelief for a few minutes, I decided to put fingers to keyboard and pen this open letter.

Dear John:

I think you might find that the officers’ “tarnished careers” is the result that they’re 1) lying under oath; 2) the DA’s office realizes they’re lying under oath; 3) they’re constantly being sued under §1983 for civil rights violations; and 4) they’re all the subject of several IAB investigations.

Oh, John, reputations are important. When you have a reputation for being a dirty cop who does whatever he can to get a conviction, well, that kind of taint is difficult to remove. But these reputations don’t just appear out of thin air — they’re earned and well-deserved.

And when an officer’s reputation is such that even the DA doesn’t believe them anymore — well, that’s it’s not the DA’s fault. In fact, I’m pretty certain that DA Williams knows exactly what he’s doing by refusing to use them. He should be commended by refusing to rely on officers with combustible pants.

Maybe — just maybe — this will teach other officers out there a lesson. When you swear to tell the truth and the whole truth, you do it. When you swear an oath to preserve and uphold the law and our constitution, you do it.

Sure, I understand that you’re the president of FOP5, and since it’s an elected position you have a reputation to upkeep among the members. But your reputation with the citizenry, at this point, is nil. And you’re not helping the public perception of the PPD as working to protect their own first, the public second.

When you rush to defend even the worst of the police force, you tarnish the best of FOP5 as well.

So next time you point your finger at the DA for refusing to call dirty cops to the stand, think about where blame really lies.

Or just keep saying stupid things; you seem to excel at that.

In the meantime, Mr. Williams, keep doing the right thing.

[Ed. — Defense attorney Michael Coard, in his article “The 4 Most Annoying White People in Philadelphia” has the following to say about Mr. McNesby, which made me chuckle:

He wants all criminals jailed forever. So who’s gonna wear the blue uniforms, drive the white cars and beat the black people up when the good cops’ shifts end?]


Want to be Pulled Over? Sign up for Philadelphia’s S.A.V.E Program.

December 4, 2012
You have rights. These books say so.

You have rights. These books say so.
They are precious. Don’t sign them away.

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

These wise words attributed to founder Benjamin Franklin are too often lost on many today who figure “Well, I’m not doing anything wrong, so why shouldn’t I just agree to let police do whatever they want?”

And I thought on Franklin’s words today, after I learned about this little program here in Philadelphia called S.A.V.E. — a too-cute acronym for Stolen Auto Verification Effort. Let me explain this program to you. No, better yet, I’ll let the police explain it to you:

All Districts in the city still do the S.A.V.E. (Stolen Auto Verification Effort) program….

The SAVE program is a decal you put on your automobile that basically states that you don’t normally drive your vehicle late at night (between 12am and 6am). By putting this decal on your vehicle you are stating that you would like that vehicle to be pulled over if it is seen operating during those hours to ensure that the vehicle isn’t stolen.

Yes, you’re reading that right. It is literally a sign to the police that says “Please pull me over”. Read the rest of this entry »