Articles Posted in Justice

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Scrofano Law PC, a premiere criminal defense and civil rights firm in Washington, DC, will be offering pro bono representation to any peaceful protesters arrested during inauguration weekend.

CONTACT US AT 1-866-701-5450 or 202-765-3175

MENTION INAUGURATION PROTESTS

With several large-scale events and planned protests coinciding with Donald Trump’s inauguration weekend, we believe defending the First Amendment is BIGLY important.

As such, we are putting out some helpful information to protesters and offering our services free of charge to anyone arrested for conducting peaceful protest activities that weekend.

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This is the final part of a three part series on DC gun laws.  In the first part, I discussed the current state of DC gun laws and how its important to challenge current gun charges on the basis of the law’s unconstitutionality.  The second part discussed the process for attempting to withdraw a guilty plea on a gun conviction under the District’s old law and weighed the pros and cons of trying to withdraw a guilty plea.  This final part discusses the class action lawsuit filed by Scrofano Law PC and the Law Office of William Claiborne.

In Smith et al v. District of Columbia, we argue that after Palmer was decided, the District government should not have continued to prosecute gun offenses.  We argue that the government’s prosecution of unconstitutional gun laws violated plaintiffs’ Second Amendment rights.  In addition, we argue that the seizure of guns violated the plaintiffs’ Fifth Amendment rights.  As previously discussed, a typical scenario that occurs in the District of Columbia is a law abiding out of state resident visiting the District who is unaware of the District’s draconian gun laws gets pulled over for a minor traffic violation.  That person tells the law enforcement officer that she has a gun in the vehicle—as one is typically trained to do in gun safety courses.  Then, the officer arrests that person and charges them with a felony gun crime.

In the past, the best outcome you could typically hope for was a misdemeanor plea agreement to avoid a felony conviction.  Palmer changed things for at least a period of time.  Palmer declared the District’s gun laws unconstitutional and many cases got dismissed.  However, after Palmer was decided the District government continued to prosecute folks—including out of state residents with lawfully registered firearms in their home state for misdemeanor registration offenses.  However, because Palmer declared that the District’s absolute ban on carrying a pistol violated the Second Amendment, we believe the then-existing registration scheme was also unconstitutional.

We argue the registration scheme was unconstitutional in at least two ways.  First, it made District residency a requirement for registration.  That mean none of the folks arrested who had lawful firearms from their home state could not ever carry in the District solely on the basis of their non-residency.  Second, no mechanism existed to register a firearm for the purpose of carrying.  Palmer recognized that the Second Amendment includes the right to carry for self-defense not just the right to possess a firearm in the home for self-defense.  Furthermore, this whole process of prosecuting individuals from out-of-state is particularly onerous considering the District government expends no resources to create awareness of its strict gun laws.  There are no signs on the metro telling people not to bring their guns into the city.  There are no commercials and no billboards.  Hundreds if not thousands of innocent non-residents have unknowingly ran afoul of these laws and became felons and misdemeanants.

Carrying a pistol is not like a DUI for example where everyone knows it’s a crime to drink and drive.  Many individuals mistakenly believe that if something is legal in their home state, it is legal in other states or the District.  We believe the people who were arrested and prosecuted under these unconstitutional laws deserve compensation for the damages they suffered.

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u-s-supreme-court-1-1221080The first part of this three part series discussed the current state of the District of Columbia’s gun laws. The second part will discuss the process involved in attempting to withdraw a guilty plea in DC Superior Court and the pros and cons of attempting to get your plea withdrawn.

Ordinarily, moving to withdraw a guilty plea is a very difficult process. Many defense attorneys refer to the process for withdrawing a guilty plea as “pulling teeth.” However, given the negative consequences associated with having a criminal conviction on your record, and the current successful challenges to the District’s gun laws, it may be worth it to go through the process.

The law disfavors a defendant withdrawing a guilty plea. Imagine every time someone plead guilty and did not like the sentence then cases would never have finality. The rule that governs the withdrawal of a guilty plea is D.C. Criminal Rule 11 (e), which states:

A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the Court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.

The plain text of the rule indicates that it is easier to withdraw a guilty plea before an individual is sentenced. Once a person is sentenced, the only way to withdraw a guilty plea is to “correct manifest injustice.” The first issue that a trial judge would have to resolve on letting someone withdraw a guilty plea is whether the person is entitled to a hearing. Many judges will look for a way to just deny the motion without holding a hearing. However, the law only permits a judge to summarily deny a motion to withdraw guilty plea under the following circumstances:

1. If the motion is palpably incredible;
2. If the motion, even if true, would not entitle the person to relief; or
3. If the motion is so vague it fails to state any legal basis for action by the court.

Typically, the government will aggressively oppose such motions and argue to the judge that the court should not even hold a hearing. However, given the fact that a federal judge in the District of Columbia ruled that its “Carrying a Pistol” statute was unconstitutional, it would be difficult for the Court to find that such a motion fit into any of the three requirements above. For example, there is nothing “palpably incredible” about an individual wanting to get a conviction off his or her record when they plead guilty to a crime that was later declared unconstitutional.

Having said all that, there are some cons for trying to withdraw a plea. First, it will cost time and money and put you back into the court system. Second, if successful, the government could potentially reinstate any charges that were dismissed as part of the plea agreement. However, they could not and would not likely reinstate the felony “carrying a pistol” felony charge as it has been declared unconstitutional.

Of course, the pros in many circumstances may outweigh the cons. If Carrying a Pistol in DC is the only conviction on one’s record (or only felony conviction), there are tremendous benefits for not having a felony conviction on one’s record. Individuals with felony convictions often can’t vote and have difficulty finding jobs and passing background checks, among other consequences.

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gun-1503923There has been a lot of news lately regarding DC’s gun laws.  If you have been convicted in the District of Columbia for carrying a pistol, unregistered firearm, or unregistered ammunition prior to October of 2014, there may be a legal remedy available to get your conviction overturned.  Part I  will discuss the current state of the District’s gun laws and how you may be able to get your conviction overturned.  Part II will discuss the pros and cons of trying to get your conviction overturned.  Finally, Part III will discuss a class action lawsuit filed by Scrofano Law PC and The Law Office of William Claiborne III on behalf of folks who were prosecuted in DC under the city’s unconstitutional gun laws.

In July of 2014, a federal judge in the District Court for the District of Columbia ruled that the city’s “carrying a pistol” statute was unconstitutional.  At that time, the District maintained an absolute ban on the carrying of a pistol.  No mechanism existed to obtain a concealed carry permit.  In Palmer v. District of Columbia, Judge Scullin ruled that right to bear arms articulated in the Second Amendment of the Constitution extended beyond the right to self defense in the home and to “carry” as well.

In response to the decision, the United States Attorney’s Office for the District of Columbia (“USAO”) dismissed basically all of its carrying a pistol prosecutions–recognizing that it could not prosecute an unconstitutional law.  These dismissals did not happen immediately but rather occurred over the course of several months.  Unfortunately, for many law abiding non-DC resident citizens who were arrested in the District of Columbia when they had either properly registered their guns in their home state or had a concealed carry permit from their home state, the USAO’s actions did not end their prosecutions.

For each case dismissed by the USAO, the DC Office of the Attorney General’s Office (“DC OAG”) basically picked up the cases and prosecuted the individuals for misdemeanor gun charges.  The DC OAG is the local prosecuting agency in the District that mainly prosecutes traffic crimes like DC DUI cases.  The charges included possession of an unregistered firearm and unlawful possession of ammunition.  In October of 2014, the DC City Council passed legislation in response to the Palmer decision.  The same attorneys from the Palmer case brought another lawsuit arguing that the new legislation was also unconstitutional.  In Wrenn v. District of Columbia, the Plaintiffs have argued that the new law’s requirement that the individual applying for a carry permit demonstrate a “special need” for self-defense (i.e. that someone has threatened them) makes the law unconstitutional.

Initially, the same judge from the Palmer case agreed.  However, that preliminary decision was reversed by the Court of Appeals for the DC Circuit.  The parties are now briefing the issue and the DC Circuit is expected to rule in the next few months.  That means the state of the new gun law is currently in limbo until the DC Circuit rules.

Regardless of the status of the new law, Judge Scullin’s decision in Palmer still stands.  No legal ruling yet exists whether this ruling should apply to individuals who were convicted under the pre-Palmer law.  In other words, whether the decision applies retroactively is yet to be decided.  That means if you plead guilty under the old law, there is a basis to try and withdraw your guilty plea and get the conviction taken off of your record.  It also means if you were convicted at trial, there may be a basis to get your conviction overturned given that the law was later ruled unconstitutional.  

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black-and-white-gun-1409524-mLast year, in Palmer v. District of Columbia, a federal judge in the United States District Court for the District of Columbia held that the District of Columbia’s carrying a pistol statute was facially unconstitutional. In a lawsuit that had been pending for several years, the judge granted the plaintiffs’ request for an injunction. The judge enjoined the city from enforcing provisions of the D.C. Code that imposed an absolute bar on carrying pistol in the District of Columbia.

The Court also held that the Court could not categorically bar out of state residents from possessing a firearm in the District of Columbia solely on the basis that they are out of state residents. The consequences of this ruling were far reaching and the full effect of this decision has yet to be seen.

After a few days, the judge in the Palmer case, the judge granted the government’s request for a stay so that the District could come up with a licensing scheme that complied with the court order. The practical result was that hundreds of people charged with felony carrying a pistol in DC Superior Court had their charges dropped by the United States Attorney’s Office for the District of Columbia. Folks charged with felon in possession were not affected by Palmer.

The Attorney General’s Office for the District of Columbia (“OAG”) re-filed misdemeanor charges against most of the people who’s carrying a pistol charge was dismissed. The OAG has jurisdiction over mostly traffic crimes—like DC DUIs and DC hit and runs. However, OAG also has jurisdiction over two misdemeanor gun charges—unregistered firearm (“UF”) and unregistered ammunition (“UA”).

It appeared that the USAO acknowledged that it could no longer prosecute individuals for carrying a pistol under a statute that a federal judge found unconstitutional. The OAG took the position that Palmer did not impact the registration crimes—UA and UF. So, while many people were fortunate to have their felony charges dropped, they still face prosecution for two serious misdemeanors. Litigation is ongoing in DC Superior Court as to the impact, if any, Palmer has on the registration crime.

At Scrofano Law PC, we are aggressively challenging the constitutionality of the UF and UA charges as applied to out-of-state residents who have lawfully registered their firearms in their home state. The main takeaway from Palmer is that the Second Amendment guarantees the right to keep and bear arms for self-defense. Palmer thus recognized a right to carry as part of the Second Amendment. The District’s registration scheme makes it impossible to exercise that right for nonresidents who cross into the District.

In addition, the District passed a new carrying a pistol without a license law in October of 2014 to theoretically comply with the judge’s decision in Palmer. However, the plaintiffs in Palmer have challenged that new law and moved for contempt against the District arguing that the new law is just as restrictive as the old law.  That litigation is ongoing.

In reality, if the government simply took a reasonable approach to offering diversion for law-abiding, nonresidents who happen to get arrested for possessing a firearm in the District, they would avoid many of these challenges. The OAG and USAO will almost categorically refuse to offer folks in this situation some type of deal that involves community service in exchange for a dismissal. For whatever policy justification, the powers that be seem to think it benefits society to have law-abiding first offenders who did not know how strict the District’s gun laws convicted of crimes.

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In August of 2012, the District of Columbia City Council, with little public comment, amended DC’s DUI/DWI law. Among the many changes included doubling mandatory minimum jail sentences for repeat offenders and cases with high chemical scores. Another change included doubling the maximum penalty for first offenders from 90 days to 180 days. The law also added additional situations in which mandatory minimum jail applied and lowered the blood alcohol score from .08 to.04 for individuals who possess a commercial driver’s license. Buried in the law included provisions that made DC’s hit and run law much broader. Many of the changes brought DC’s DUI law closer to the trend among most states who have created harsher penalties.

However, many of the changes were either arbitrary or say more about local institutional politics than public policy. One major arbitrary and ridiculous change to the law is a provision that bars individuals facing mandatory minimum jail time from serving that time on the weekends. Under the old law, judges routinely when forced to sentence individuals to mandatory jail time allowed them to serve that time on the weekends.

There are a variety of reasons an individual may wish to serve a ten day mandatory minimum sentence over the course of a few weekends.

First and foremost, an individual could lose their job when forced to take a full week or longer off from work. Furthermore, this provision discriminates socio-economically. DUI in particular is a crime that transcends socio-economic barriers. Doctors, lawyers, politicians, and engineers are just as likely to get a DUI as waiters, carpenters, and janitors. Those with salaried positions who get a DC DUI or DWI that triggers mandatory minimum jail time can usually take that time off work as vacation days and still get paid. Wage laborers who get paid hourly don’t have that luxury. They not only don’t get paid; they often lose their jobs when they tell their employer they have to miss the next ten days at work.

What possible public policy goal does barring individuals from serving their statutorily mandated jail time on the weekend? While I certainly recognize my inherent bias to favor the individual over the institution as a DC DUI lawyer, I challenge anyone to make out a public policy rationale for such an arbitrary provision in the law. Certainly, society benefits from having folks who are employed, paying their bills, and paying taxes.

I have often seen how a criminal conviction can wreak havoc on an individual. The conviction can lead to job loss, which in turn can cause some folks to turn to drugs or alcohol to cope with the stress and frustration. Compound that with the loss of driver’s license and other collateral consequences of a DUI conviction. Meanwhile, the person can’t find gainful employment because every time a potential employer does a background check, they find a criminal conviction.

Who is more likely to reoffend? The gainfully employed person who managed to retain employment by serving time on weekends or the unemployed frustrated individual barely getting by? This provision in particular serves no valid public policy and is a shameful example of prosecutorial overreach in the District of Columbia.

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489547_cocaine_stripesA big story in the news today was last night’s arrest of Republican Congressman from Florida Trey Radel for possession of cocaine in DC.  Congressman Radel is a freshman tea party congressman who represents the 19th congressional district which covers Naples, Fort Myers, and Cape Coral.

He was arrested after he purchased about 3.5 grams of cocaine from an undercover law enforcement officer.  In DC, possession of cocaine is a misdemeanor that carries a maximum penalty of 180 days in jail and/or a $1,000.00 fine.  Unlike most people arrested in DC, Congressman Radel immediately plead guilty at his first court date.  I did not realize what had happened until I walked into court this morning and saw the media frenzy outside the DC Superior Court.

Congressman Radel was sentenced by Senior Associate Judge Robert S. Tignor (a judge a just appeared in front of yesterday) under provisions of the DC Code that would allow his arrest and subsequent guilty plea to be expunged if he successfully completes probation.  Some people refer to this as “probation before judgment” because it puts the defendant on probation before officially entering the judgment.  There is a lot of speculation out there as to whether the Congressman got a sweetheart deal with the United States Attorney’s Office for the District of Columbia because of his position.  As a DC criminal defense lawyer who has litigated close to 300 cases in Superior Court, I can unequivocally say that is not the case.

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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.

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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.

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