Articles Posted in Arrests

There are some days where the wastefulness in the criminal justice system makes me sick.  Last Wednesday, Novemberpolice-officer-1262266-m 7 was one of those days.  On the weekend of October 13, 2013, during the government shutdown, the Metropolitan Police Department conducted “Operation off the Streets 2.”  This operation, which probably cost the city millions of dollars in resources, resulted in the arrest of over 60 people in undercover prostitution operations.

Almost everyone arrested were first time offenders or people with very limited criminal history.  Almost everyone arrested was released on what’s called “citation release.”  That means the police released them at the station after booking them and gave them a citation to come to court at a future date.  That brings us to November 7—the day they set all 60 of these arrests for arraignment.  Some of them hired DC prostitution lawyers in advance others got court appointed attorneys on the day of arraignment.

All of these arrests occurred in a single police district, Third District, which encompasses Adams Morgan, Columbia Heights, the U St and 14th St Corridor, and downtown near Metro Center and McPherson Square.  In this “operation,” the police went out and created crime where crime didn’t exist then arrested folks so that they could boast how much crime they are fighting.

Of the sixty or so cases that came through arraignment on November 7, here is a typical fact pattern: intoxicated guy or guys walking from a bar downtown, a scantily dressed female (undercover cop) hollers at the guy to come talk, intoxicated guy obliges, undercover cop makes some vague innuendos or outright offers sex, intoxicated guy says ‘uh, ok.’  Arrest team comes out from the shadows and makes the arrest.

The beauty of these so-called “sting” operations is that, as a matter of routine, the undercover officer does not record the conversation.  I have a theory as to why undercover cops do not record conversations where the saying of actual specific words is what makes someone actually guilty of the specific crime and its not because MPD does not have the technology or resources to do something anyone with a cell phone can do.

Police invest a tremendous amount of resources into sting operations.  Think about the person hours alone: the undercover officer, the arrest team (usually 3 or 4 officers), the transport, the radio dispatch, the booking officer at the station, the property clerk who takes the arrestee’s property, etc.  In many of these cases, the police rented expensive hotel rooms at downtown hotels.  If a sting operation is not successful, then it’s a tremendous amount of resources wasted.  So, the undercover is under pressure to be successful.  What constitutes a successful operation?  If the target, says the magic words (in this case agrees to pay money for sex).

Why wouldn’t MPD want verifiable evidence that the target actually committed the crime?  My experience in defending these types of cases has been that the undercover simply arrests the person and writes in the report that the target said the magic words and committed the crime no matter what.  Without a recording, the undercover is both the person under pressure to conduct a successful operation and the sole person who judges whether the operation was successful.  Few cases actually end up in trial.  The ones that do are not jury demandable, so a Superior Court judge decides whether the undercover officer was truthful.  In other words: no recording, no accountability.

The ironic thing about this big operation that probably consumed millions of dollars in taxpayer resources is that the government will probably not get a single conviction out of it.  Like I said, most people arrested were first time offenders or people with limited criminal history.  I was in court and watched dozens of them enter deferred prosecution agreements.  So, hats off MPD, there will be an influx of embarrassed men and women doing community service in the city for the next four months.  Mission accomplished.

Continue reading

private-sign-1382045-mIf you are arrested in the District of Columbia, the police will confiscate your property.  The police will take your property and in most cases they make it very difficult (if not impossible) for you to get your property back.  When they take your property, there are three primary manners in which they categorize the property, which determine the process you must use to get it back.

First, personal property, which may include keys, wallet, and other personal items.  That type of property is the easiest to get back.  The police should give you a property receipt, which you can take back to the police station to get your items returned.  However, the police will not release personal effects to a third-party.  That means if you are locked up after your arrest, you cannot send a friend or family member to pick up the property,

In many cases, the police will confiscate your property and mark it for use as evidence in the case.  In this scenario, you cannot get your stuff back until after the case is resolved.  In addition, even if your case is dismissed or you are found not guilty at trial, the police will make it administratively difficult to get the property back.  In other words, they will throw up a bunch of bureaucratic hurdles to prevent you from getting your property back.  The first step in the process requires the prosecutor to submit to MPD a form PD 81-C, which basically states that the government has no objection to the release of the property.

Theoretically, that should be enough to get your property back.  However, the Evidence Control Branch routinely denies ever receiving the PD 81C.  I have had cases where a prosecutor has gone to great efforts to get the PD 81C to MPD and made completely clear that the government had no objection to the release of property only to have MPD still refuse to give my client their property back.  In that case, the ultimate way to get the property back is for your DC criminal defense lawyer to file a Motion with the Court requesting that the Court order MPD to release the property.  Usually, the government will not oppose the Motion and the Court will grant it.

Finally, and the most difficult process, which will be the subject of its own future blog posting is where the government moves to confiscate the property based on civil forfeiture.  Here is an example of one of the most ridiculous civil forfeiture I have encountered.  Client was arrested for possession of marijuana and a DC DUI.  The police seized the vehicle he was driving and put it in the forfeiture process.  The client ultimately plead guilty to a lesser offense and had both charges dismissed.

However, the client still had to go through the cumbersome forfeiture process.  The client had to post a $600.00 bond.  Once he did that, he had to wait several months for the Office of the Attorney General to decide whether it would initiate forfeiture proceedings.  Fortunately, the OAG’s office decided not to initiate forfeiture proceedings and he ultimately got his vehicle back–months after his DC arrest.  However, had the OAG’s office decided to initiate forfeiture proceedings, he would have had to defend and win a civil lawsuit just to get his own vehicle back from the government.

The DC government has little respect for personal property.  Even if you are innocent, found not guilty, or your case gets no papered or dismissed, MPD and the OAG my still keep your personal property.  The civil forfeiture process puts police profit over personal property rights.

Continue reading

This post is the third and final in a three part series that addresses what diversion is in DC criminal law.  The first part discussed deferred prosecution agreements.  Part two discussed deferred sentencing agreements.  This part will discuss the DC Superior Court’s problem solving court options that include Mental Health Court and the Superior Court Drug Intervention Program or “Drug Court.”  These options are available to people charged by the United States Attorney’s Office and if successfully completed can result in the dismissal of one’s case.gavel

In both courts, the central focus is treatment rather than incarceration.  In Drug Court, the focus is exclusively on the person charged getting drug treatment.  In Mental Health Court, the focus is typically on both drug treatment and mental health treatment, which typically go hand in hand where someone suffers from both a mental health illness and a drug addiction.  If someone completes either court successfully, the government will usually dismiss that person’s criminal case.  Not everyone can enter these programs.  For both problem solving courts, the person must be approved by both either the United States Attorney’s Office (“USAO”) or the Pretrial Services Agency or both.  So, it is important, if you are interested in resolving your criminal case through a problem solving court, to have a DC criminal defense lawyer who will advocate on your behalf to help get you into the court that most fits your situation.

The government has the power to veto someone’s entrance into Mental Health Court.  Accordingly, the USAO has specific eligibility requirements before it lets someone into this problem solving court.  Individuals with certain disqualifying convictions on their record may not be eligible.  In addition, if the person has received the benefit of the program in the past, then the government may bar entry.  If the government approves the person for Mental Health Court, the person still may not be eligible.  The Pretrial Services Agency must also screen the individual.  The individual must have a verified mental health illness, be eligible to be supervised by the Specialized Supervision Unit, and be linked to a mental health services provider.  If both the government and Pretrial Services approve the individual for Mental Health Court, then the person will be admitted into the program.

For Drug Court, the government no longer has veto power over an individual’s entrance into Drug Court.  However, Pretrial Services must approve the person.  For entrance into Drug Court, certain violent past convictions may disqualify someone.  In addition, the person must have a drug problem beyond marijuana use.  A typical pretrial condition for someone arrested in DC is to drug test weekly.  If the person’s drug tests come back consistently positive and they meet other requirements, Pretrial Services may approve the individual for Drug Court.  Before entry into Drug Court, the person must complete an Addiction Severity Index or “ASI.”  For an ASI, a Pretrial Services representative will conduct an interview about the person’s drug usage.  The results of which may dictate whether the person gets into Drug Court and what treatment recommendation Pretrial Services will make to the judge.

For both problem solving courts, successful completion requires the person to test negative for drugs, complete any drug treatment options recommended, come to court when scheduled, and (for Mental Health Court) keep up with mental health services.  Supervision is extensive and both programs are relatively rigorous.  However, for individuals in need of services, it is a way to address underlying problems and hopefully get a criminal case dismissed.

Continue reading

This entry is part two of a three part series explaining what diversion is in the District of Columbia.  The first part discussed the Deferred Prosecution Agreement or “DPA.”  Part II discusses a Deferred Sentencing Agreement or “DSA.”  A DSA is similar to a DPA in that the government will require the person accused of a crime to jump through a series of hoops in exchange for ultimately dropping the charges.  Both the US Attorney’s Office for the District of Columbia or USAO and the DC Office of the Attorney General or OAG offer DSA as a pretrial diversion option in limited circumstances.

file0001722308752For the DC crimes charged by the USAO, the criteria for a DSA is very similar to its criteria for a DPA.  A person must drug test negative to qualify for a DSA.  If the person’s first drug test is negative, then that will satisfy the requirement.  However, if the first test is positive, then the person must drug test until he or she gets two consecutive negative tests.  Usually, a prosecutor will offer a DSA instead of a DPA for somewhat arbitrary reasons.  It could be a prior conviction in the person’s background or something related to a complaining witness in the case.  A DSA is still a good deal in most cases.  However, it requires the person plead guilty where a DPA does not.

A person who enters a DSA must plead guilty to the charged offenses.  The Court will then defer sentencing for six months.  During that six months, the person must complete 48 hours of community service, not get rearrested, and sometimes comply with other conditions like pay restitution or stay away from a person or area.  If the person completes all the requirements in the DSA, at the sentencing, the government will not oppose the person from withdrawing their guilty plea.  Once the guilty plea is withdrawn, the government will dismiss the case.

For traffic related offenses, the OAG offers DSA’s on certain crimes but they have much stricter criteria.  In addition, their requirements are often more rigorous to complete.  For a DUI, the OAG will offer a DSA only if the following conditions are met: no accident can occur, the person must not refuse to take a chemical test, the results of the chemical test must not exceed .10 for blood or breath scores, and the person must not be on probation.  Even if all that criteria is met, the prosecutor may find some other reason to refuse to offer a DSA.

For OAG DSA’s, the person must plead guilty to the offense and the Court usually defers sentencing for six months to a year.  During that six months, the person must pay significant fines, complete a series of alcohol and traffic related classes that cost money to attend, complete community service, not get rearrested, and not commit any traffic offenses.  If the person completes those requirements, at sentencing, the government will not oppose the withdrawal of the guilty plea, and then ultimately dismiss the case.

Continue reading

In DC criminal law, people often ask what diversion is.  This post is the first part in a three part series that answers that question.  Diversion is a program offered by the prosecution where when an individual meets certain conditions, the government will dismiss the charges against that person.  Several types of diversion programs exist in DC.  Having a criminal defense lawyer who can explain the diversion options is important when you are charged with a crime in DC.  Before understanding what type of diversion options exist, its important to know the difference between the two government agencies in DC that prosecute crimes.

As previously mentioned, the DC Office of the Attorney General (OAG) prosecutes only traffic misdemeanors.  The United States Attorney’s Office for the District of Columbia (USAO) prosecutes all other misdemeanors and felony crimes.  Felonies are crimes that carry a maximum penalty of more than one year in jail.  That difference is important in and deserves further discussion in a future post.  The United States Attorney’s Office has more flexibility in diversion programs and also has more options with more reasonable requirements.  So, the first couple of posts on this topic will discuss diversion options the USAO offers.  I will discuss the OAG’s diversion police in a later post for those primarily concerned with options when they get a DC DUI.

My favorite option is a deferred prosecution agreement or DPA.  In a DPA, the accused does not have to plead guilty or admit responsibility.  The government and the accused sign a contract that basically says the person will not get rearrested and will complete 32 hours community service.  In exchange the government will postpone the prosecution of the case for four months.  If the person comes back to court in the four months and complies with the agreement, the government will dismiss the case.  During the four months period, the accused is not supervised by any government agency (like Pretrial Services or Probation).  Whether to offer a DPA is solely in the government’s discretion.  Any DC criminal lawyer who promises a guaranteed DPA is not being candid with his or her client.

It is a major benefit for an individual to enter into a DPA as a way to get their case dismissed.  As I mentioned, the person does not have to plead guilty to get the benefit of a DPA.  There can be a lot of bad consequences for pleading guilty to a charge even if that charge is later dismissed.  With a DPA, there is no guilty plea, which is an important difference between a deferred sentencing agreement (to be discussed in Part II of this post).  Finally, the government requires that an individual test negative for drugs and have a very limited criminal record to get a DPA.  Also, certain offenses are not DPA eligible.  If the person’s first drug test is negative, then that satisfies the drug test requirement.  If the first drug test is positive, the person must drug test until he or she gets two consecutive negative drug tests.

Continue reading

Police CarIn Washington, DC, two separate agencies prosecute crimes.  The United States Attorney’s Office for the District of Columbia prosecutes felony cases and most misdemeanors.  In addition, the District of Columbia Office of the Attorney General prosecutes traffic crimes–most notably DUI’s.  When someone gets arrested, the arresting officers fills out a number of police reports.  Those reports are then sent to the prosecuting agency.  On any given day in Washington, DC, a specific, often unidentified, prosecutor will go through the reports and decides whether to bring criminal charges against the person arrested.  This process is referred to as “papering” a case.  When the “papering” prosecutor, decides that a particular arrest should not result in the government filing formal criminal charges against the person arrested, that arrest will be “no papered.”

If you get arrested in Washington, DC, and you go through DC Superior Court, and the court tells you that your case has been “no papered,” you should consider yourself very lucky.  That simply means that the government has declined to file charges against you despite your arrest.  Criminal defense lawyers in Washington, DC have no control whatsoever on this process.  The “papering” prosecutor may make this decision for any number of reasons all of which have nothing to do with anything a criminal lawyer may or may not do.  Some reasons include when the cops fill out their paperwork improperly.  Other reasons may be that its clear from the police report documents that the police clearly violated the person arrested’s constitutional rights or the prosecutor believes that even if everything in the police report is accurate, the government could not prove their case beyond a reasonable doubt.  I have never heard or seen a scenario where the government tells the individual why their case was “no papered.”  If your case gets “no papered,” you should be happy you do not have to face criminal charges in Washington, DC.  Unfortunately, if you are arrested for DUI, there is almost no chance that the Office of the Attorney General will “no paper” your case.

If you are arrested in Washington, DC, you should consult with a criminal defense lawyer to ensure that your constitutional rights are protected.  Many people are released from the police station after an arrest and given a Citation to Appear in Court with a specific court date at which time you will find out whether your case is papered.  You should consult with a criminal defense lawyer before going to court.  The chances that your case will be “no papered” are usually pretty slim.  Therefore, its important to have a criminal defense lawyer who can help you mount a defense from the beginning of your case.  If you are one of the lucky ones, and your case is “no papered,” a Washington, DC criminal defense lawyer can advise you on how to get your arrested record expunged afterwards.  Otherwise, even though the government decided not file a formal case against you, you will continue to have an arrest record when employers and others do a background check.

Continue reading