Articles Tagged with Judges

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”  Sixth Amendment, United States Constitution.

When I recently attended the Trial Lawyer’s College, I had the opportunity to meet and get to know a number of great criminal defense lawyers from across the country.  I got to know criminal defense lawyers from California, Georgia, Ohio, Nebraska, and Indiana, among other places.  With the exception of a Marine Corp JAG officer who represents detainees at Guantanamo Bay and lives in northern Virginia, I was the only DC area criminal defense lawyer at the College.  The trip shattered a number of assumptions that I had brought with me.justice-srb-1-1040136-m

I had always viewed the DC as a progressive and enlightened jurisdiction—especially compared to “tough on crime” southern states.  I recognized DC had its problems but thought they were trivial compared to states like Florida and my home state of Texas.  We have local judges appointed by the President and confirmed by the Senate—not elected and subject to the whims of popular opinion.  We have a strong defense bar even for people who cannot afford an attorney.  We have more former criminal defense lawyers on the bench than most jurisdictions.  Most judges in DC take the view that treatment rather than incarceration is the most effective way to curb drug abuse.

However, DC has its own serious structural problems and being around defense lawyers from other jurisdictions brought that fact home with me.  In DC, you can go to jail for 180 days and not be entitled to a jury trial.  In fact, DC criminal law denies someone charged with three 180 day in jail maximum offenses, with a total 540 days possible jail time, the right to a trial by jury.  Unless the maximum penalty for the crime you’re charged with is greater than 180 days, a judge rather than a jury of your peers decides your guilt or innocence.

In DC, about 95 percent of the misdemeanor crimes carry a maximum penalty of 180 days in jail.  Only a few misdemeanors carry between 181 days and 1 year (anything beyond a year maximum is a felony).  Even with those jury demandable misdemeanors, the government will typically amend the charge to “Attempt” whatever the underlying crime is, and the DC general attempt statute carries a maximum penalty of 180 days in jail.  So, the government can manipulate the charges on the day of trial to deny the individual a right to a jury in almost any misdemeanor case and, in most cases, they do just that.

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My first job out of law school was a clerkship for Judge Natalia Combs Greene in the DC Superior Court.  I think most young lawyers who clerk immediately out of law school have good experiences and learn a lot.  I think that I personally had a special experience clerking for Judge Combs Greene.  Throughout my two years with her, she treated me like an equal.  She valued my opinion even when I strenuously disagreed with her.  In fact, I think she liked it when I disagreed because it helped her work through difficult decisions to argue both sides of a particular issue.  She taught me immeasurable lessons about trial advocacy, the court system, and lawyering.  Without having clerked for her specifically, I would have never had the courage to start Scrofano Law at such a young age.

Judge Combs Greene started as an Assistant United States Attorney (“AUSA”).  In other words, she began her career as a prosecutor.  She was an AUSA before the DC City Council eviscerated the right to a jury trial.  In her day, misdemeanors were jury demandable, so she gained a ton of jury trial experience—unlike today where a charge is only jury demandable if the maximum penalty is more than 180 days in jail.  She left for private practice in California and ultimately returned to United States Attorney’s Office where she was eventually appointed as the Director of Training.  In that position, she was responsible for training the new AUSA’s.  I think that was a testament to her trial skills that they asked to run the training program for new prosecutors.  From that position, then-President Clinton appointed her as an Associate Judge to the DC Superior Court.

She announced her retirement this year and her last day is September 30.  The DC Judicial Nomination Commission, which is an organization that selects three nominees for the President to choose one for appointment, is seeking comment on the 18 attorneys who have applied to serve as her replacement.  This process has sparked some debate in the DC criminal defense community as to what qualities make a good judge.  That discussion has stirred some strong feelings in me about who should serve as her replacement.  I have unique insight into what qualities she personally brought to the bench and cannot help feel invested in who replaces her.