23 May 2004

Criminal Defense Seminar

The highlight of last week was a CLE held by the Virginia Association of Criminal Defense Attorneys. Unfortunately, I had a couple of matters come up in the morning and missed the first hour. It was a shame because it was a led by Esther Windmueller, who is a rather impressive local attorney; and she's even a Defensive End for the Richmond Avengers.

Although she did finish before I got there she put together a very useful outline as to how to handle a case:

Ten Things That Every Criminal Defense Lawyer Should Do
(So as not to suck)
(plus a few extras, just for good measure)
By Esther J. Windmueller

1. Read the file on every show cause.
a) See if time has expired.
b) See what underlying facts are
c) Number of previous show causes and results
d) Judge notes about what will happen the next time
e) Read for cases too, witness subpoenas are in there.....

2. For new cases, go back and read the Code again,
(also check jury instructions)
a) The defenses are in there.
i) disorderly
ii) false information
iii) suspended operators license
b) read the headnotes, but do NOT practice from them, (most embarrassing moments result). You must read the case. Think about who is writing the headnotes......
c) Check charging document - is it the right code section (embezzle v. grand larceny v. false pretenses, etc). Is there a statute of limitations problem (misdemeanor)? Is it the right date?

3. Get involved in the snitching (even though very distasteful)

a) Note what date and time your client agrees to snitch.
b) Keep track of number of meetings, other activities and targets
c) Follow up, send letters to prosecutor
d) Never push snitching and always let client know ramifications

4. Talk to witnesses and law enforcement before the case. Can't hurt.
a) Find out facts
b) Find out demeanor
c) Makes prosecutors nervous
d) Can make deal
e) Do not backstab, however. Let everyone know your ethical duties up front.

5. Look at all exhibits/physical evidence, (in court and out).
a) send wrong one to the bench (win your case)
b) stuff that can help you
c) Get labs early, need to get stuff tested. Testing from state lab:

Va. Code § 9.1-121. Rights of accused person or his attorney to results of investigation or to investigation. - Upon the request of any person accused of a crime or upon the request of an accused person's attorney, the Division of Forensic Science or the Division of Consolidated Laboratory Services shall furnish to the accused or his attorney the results of any investigation which has been conducted by it and which is related in any way to a crime for which the person is accused. In any case in which an attorney of record for a person accused of violation of any criminal law of the Commonwealth, or the accused, may desire a scientific investigation, he shall, by motion filed before the court in which the charge is pending, certify that in good faith he believes that a scientific investigation may be relevant to the criminal charge. The motion shall be heard ex parte as soon as practicable, and the court shall, after a hearing upon the motion and being satisfied as to the correctness of the certification, order that the same be performed by the Division of Forensic Science or the Division of Consolidated Laboratory Services and shall prescribe in its order the method of custody, transfer, and return of evidence submitted for scientific investigation. Upon the request of the attorney for the Commonwealth of the jurisdiction in which the charge is pending, he shall be furnished the results of the scientific investigation.

d) Get Breathalyzer info from Dept of Forensic Sciences

6. Do Guidelines yourself early, (which means get the record, early - bond motion perhaps). Available from Virginia Sentencing Commission, helpful CLEs.
a) know a good deal when you see one.
b) Know which charges to get dropped or what to turn your charge into.
c) Know when it would be very hazardous to get a Presentence Report (juvenile crime of violence, for instance)
d) Know your prosecutor; can he/she do the guidelines correctly?

7. Really review Pre-sentence reports.

a) In presentence reports, probation officers often just look to computer info. Pull the priors, often different, ck for status offenses for juveniles, etc., no ol for sols, etc.
b) Do the math.
c) Gain credibility with the court (but often good to check with probation officer first)
d) Call the sentencing commission hotline when any doubt. 804 225-4398.
e) Federal court. Priors can kill, facts can show overstated seriousness....

8. Go to the crime scene.
a) Allows you to ask the right questions at prelim.
b) Gain credibility with officers, prosecutors and judges and your client.
c) Can show you the way to a defense (trespassing sign example).

9. Check on Commonwealth's witness background yourself

a) put name into court computer. Can now do it online, www.courts.va.us.
b) can tell you things other than convictions when look at hard copy.

10. Jury List
a) Pull the master list. Check the addresses. Section 8.01-345
b) Figure out who the ideal juror is. Educated? Parent? Young person?....

11. Return phone calls/letters

a) They will keep calling until you do anyway.
b) They will never hire you again (or the first time) if you do not.
c) They may have very important information for you this time.

12. Visit within 24/48 hours.
Enormous goodwill, may save client's job. Some cases require action right up front (like telling client not to talk on the telephone at the jail!!)

13. File Discovery unless you have decided for a particular reason not to.
a) Get order signed
b) Tickle yourself to check to see if it has been responded to.


It's a good checklist which I commend to you all. If anybody out there ever needs hardcore representation in Richmond (and you don't want to hire me) you could do far worse than to go retain Esther.

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