* Larceny is a wrongful taking. Robbery is a wrongful taking/row the immediate actual possession of another person. Larceny of property worth less than a certain amount ($100, in Washington) is petit larceny; of more valuable property—grand larceny.
* Ethical Consideration 2-30.
* Possessing stolen property (if you know or should know it’s stolen) is a crime in D.C., of which you can be convicted if, and only if, you are not convicted of stealing it; but selling the property is not a separate crime itself.
* Actually, the National Park Service alone had two and a quarter million daffodils blooming in the Washington area in 1980.
* Of all people arrested in Washington in 1978, 94 percent were nonwhite (Crime and Justice Profile: The Nation’s Capital, Office of Criminal Justice Plans and Analysis, Government of the District of Columbia [Washington, D.C.: October 1979], p. v). Of the 2,500 men imprisoned at D.C.’s Lorton Correctional Facility, there were usually less than two dozen whites (private conversation, Kirby Howlett, Esq., Public Defender Service, August 1982).
* A congressional clerk inadvertently left out the possessive apostrophe when a bill was finally passed giving the hospital its present name in 1916. The facility was originally called the Government Hospital for the Insane. It was used as a military hospital during the Civil War, and wounded Union soldiers demanded the name change because they didn’t like it as an address. (Private conversation, Philip Baridon, Ph.D., Chief, Program Evaluation Branch, Forensic Division, St. Elizabeths Hospital, May 9, 1983.)
* Generally, “duress” is a defense (although not to a murder charge) if the will of the accused was overborne at the time of the offense by threats of imminent death or serious bodily injury, so that the commission of the offense was not the voluntary act of the accused.
* The Fifth Amendment provides, in relevant part, that no person “shall be compelled in any criminal case to be a witness against himself …”
† It is impossible to commit a robbery without attempting to commit a robbery. Thus, attempted robbery is a “lesser included offense” in robbery and may be pled to, even though the robbery was completed.
* The rate of tuberculosis among Washington children is four to five times higher than the national average and the infant mortality rate is double the national average (Phil Gailey and Warren Weaver, Jr., “Troubling Figures,” New York Times, November 18, 1982, p. B-14).
* In Washington, about 6 percent of property stolen in burglaries is recovered. In 1979, $5,482,858 worth of property was reported stolen in burglaries; $317,274 worth was recovered. (Crime and Arrest Profile, The Nation’s Capital, 1979, Office of Criminal Justice Plans and Analysis, Government of the District of Columbia [Washington, D.C.: October 1980], table 14, p. 97.)
* Material: tending to prove or disprove a fact at issue in the case.
* The whole famous murder “trial” of Leopold and Loeb consisted of the sentencing hearing, of several weeks’ duration, which followed their pleas of guilty.
* The arraignment is the proceeding at which the defendant is formally notified of the charges against him and enters his plea.
* Under D.C. law, any killing, even if accidental, committed in perpetrating or attempting to perpetrate a robbery is murder in the first degree (22 D.C. Code 2401).
* The Constitution requires that an arrested person, without unreasonable delay, be brought before a judge or magistrate, who informs the defendant of the charges against him, and of his right to the assistance of counsel, including appointed counsel if he is indigent, and to a trial, and to a trial by jury if he faces punishment of more than six months in jail. If the charge is a misdemeanor (offense punishable by a year or less in jail), this initial appearance is the defendant’s arraignment, and he enters his plea. If the charge is a felony, and the defendant has not yet been indicted by the grand jury, the initial appearance is the defendant’s presentment; he is not formally charged and does not plead, but is informed of his right to a preliminary hearing, for which the date is set. At the arraignment or presentment, the judge determines if and under what conditions the defendant may be released until his next appearance.
* No.
* D.C. has no death penalty.
* The Pretrial Services Agency, or “bail agency,” interviews each defendant and, on the basis of objective criteria such as employment status, length of residence, and family ties, recommends to the judge whether the defendant should be released on personal recognizance. It also maintains contact with released defendants, reminding them of their court dates.
* Stenographers are not present at presentments.
† Five percent of cases examined at a preliminary hearing are dismissed for lack of probable cause (Crime and Justice Profile: The Nation’s Capital, Office of Criminal Justice Plans and Analysis, Government of the District of Columbia [Washington, D.C.: October 1979], p. vi).
* The Washington metropolitan area, with approximately 1,000 practicing psychiatrists, ranked third in the nation for psychiatrists per capita, behind New York and San Francisco (private conversation with Dr. Harold Eist, President, Washington Psychiatric Society, May 21, 1982).
* Because it began as a frisk based on an articulable suspicion that Shirley was armed, and, therefore, it was not an unreasonable search or seizure in violation of the Fourth Amendment.
* An attorney is obligated to investigate every case. “The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or his stated desire to plead guilty” (American Bar Association, Standards Relating to the Defense Function [approved draft, 1971], Sect. 4.1).
* The John Howard Pavilion was built in 1959, and there had been only two escapes by 1983 (private conversation, Philip Baridon, Ph.D., Chief, Evaluation Branch, Forensic Division, St. Elizabeths Hospital, May 6, 1983).
† A St. Elizabeths study found that a sample of patients committed following verdicts of not guilty by reason of insanity (N.G.I.) on a variety of charges spent an average of thirty-nine months locked up before they were even allowed to walk the grounds of the hospital. The average incarceration of a similar sample of prisoners in the D.C. correctional system was thirty-two months.
Among N.G.I. patients released from St. E’s between 1974 and 1982, 23 percent of those who’d been charged with murder or rape had been in the hospital for more than ten years, as had 21 percent of those who had been charged merely with “public order” offenses such as disorderly conduct:3 In the latter cases, the patients suffered deprivation of liberty for more than forty times as long as the ninety-day maximum sentence that could be imposed on a person convicted of the offense. The Supreme Court decided in the summer of 1983 that such commitments in excess of the maximum sentence are legal, in Jones v. United States. Michael Jones was accused of shoplifting a coat in 1974. He had been in St. Elizabeths ever since.4
Once St. Elizabeths N.G.I, patients are released, their recidivism rate is lower than that of ordinary prisoners. Of 227 N.G.I. patients released into the community under ongoing supervision between April 1977 and March 1978, only 29 (12.8 percent) had gotten into any trouble by the end of 1978. That is considered an adequate follow-up period, because released prisoners who run afoul of the law tend to do so quickly. The comparable recidivism rate for federal prisoners is 25 percent.5
‡ Like the District of Columbia itself, the D.C. court system is a hybrid with local and federal aspects. Although its judges are appointed by the President of the United States and its criminal cases are prosecuted by the United States attorney’s office, the D.C. court system has had, since the Court Reform Act of 1971, its own case law and its own rules.
* There are some variations in wording from jurisdiction to jurisdiction.
* In fact, the evidence is to the contrary. A National Institute of Justice study of 520,-993 felony cases presented from 1976 to 1979 to prosecutors in California found that only 4,130, or 0.78 percent, were rejected for prosecution because of se
arch-and-seizure problems. (Nearly three fourths of those were drug-related cases, rather than violent crimes.) Of felony cases that were presented in court, only four tenths of one percent were dismissed because of search-and-seizure issues. (Tom Wicker, “Exploding a Myth,” New York Times, May 10, 1983, p. A-25.)
* Police radio transmissions are taped and can be subpoenaed by the defense.
* About 30 percent of men convicted of felonies in D.C. are sent to federal prisons rather than D.C.’s Lorton Correctional Facility, either because they have enemies at Lorton or because the judge or the defendant himself wants the defendant in a program available only at a federal facility.
† “A person aids and abets another in the commission of a crime if he knowingly associates himself in some way with the criminal venture with the intent to commit the crime, participates in it as something he wishes to bring about, and seeks by some action of his to make it succeed” (Instruction No. 4.02, Criminal Jury Instructions, District of Columbia, Third Edition, Young Lawyers Section, The Bar Association of the District of Columbia [Washington, D.C.: 1978]).
* Like the jurors, the two lawyers, defendant, clerk, bailiff, marshal, and court reporter spoke when spoken to.
* From Old French, “to speak the truth.” The same term is used to denote a hearing during the trial, out of the presence of the jury, during which the judge determines whether, as a matter of law, certain evidence may be presented to the jury.
* In the common law, the original rationale for the oath was to invoke the belief in divine retribution for false swearing. At first the witness had to avow a belief that God would strike him down on the spot if he lied, otherwise he was not allowed to testify. Later a belief in punishment in the afterlife was sufficient. Only in the past quarter century has judicial opposition to testimony by atheists dissipated.
* Until relatively recently, criminal defendants were not allowed to give sworn testimony at all, but were permitted at most to make “a statement” to the jury. “The competency of accused persons [to testify] was first declared in Maine, in 1864 … It came later, in general, in the Southern States, and there it was sometimes accompanied by the proviso that the accused should testify, if at all, first in order of the witnesses on his own side…. Until as recently as 1962, a criminal defendant in Georgia was not permitted to testify under oath” (John Henry Wigmore, Evidence in Trials at Common Law, vol. 2, revised by James H. Chadbourn [Boston: Little, Brown, 1979], p. 826).
* Population in August 1982. Official capacity is 2,323. Women convicted of felonies in D.C. are sent to the federal correctional facility at Alderson, West Virginia. Misdemeanants serve their time at a facility in Occoquan, Virginia, or at the D.C. jail, which held 1,899 people in August 1982—544 over capacity. (Private conversation, Kirby Howlett, Esq., Public Defender Service, August 1982.)
* Prisoners who are “disciplinary problems” or considered to be in extreme danger have it the worst, spending twenty-three and a half hours a day in small unairconditioned cells.
* Unlike many big-city departments, the D.C. police do not have tape recorders or stenographers for taking statements.
* In fact, no witnesses were able to identify Croft. It’s common police interrogation technique to lie to the suspect, telling him that he’s been identified, his fingerprints have been found, his partner’s confessed, and so forth. Courts have held that this does not constitute impermissible coercion.
* See pages 154–55.
† The comments appended to the code explain: “6. Paragraph (2) of section 4.01 is designed to exclude from the concept of ‘mental disease or defect’ the case of so-called ‘psychopathic personality.’ The reason for the exclusion is that … psychopathy ‘is a statistical abnormality; that is to say, the psychopath differs from a normal person only quantitatively or in degree, not qualitatively; and the diagnosis of psychopathic personality does not carry with it any explanation of the causes of the abnormality.’” (Comments to the Fourth Draft, p. 160, quoted in United States v. Brawner, 471 F. 2nd 969, 993 footnote 41, U.S.C.A. [D.C. Cir. 1972].)
* To arrest for a petty offense without a warrant, the officer must catch the offender in the act.
* To “impeach” a witness means to attack his credibility either by specifically contradicting what he has said or by showing that he is generally unworthy of belief because, for instance, he is a convicted felon or has been caught lying before.
* Historically, unanimous verdicts have been required to convict in American courts generally, and twelve-person criminal juries have been the rule. Defense attorneys argue that a less than unanimous verdict necessarily means that there was a reasonable doubt about the defendant’s guilt; and that twelve jurors are necessary to ensure that the will and wisdom of the community are adequately represented (and to maximize the chances of getting at least one juror who won’t vote to convict). The Supreme Court, however, has upheld 9–3 convictions in noncapital cases in state courts (Johnson v. Louisiana, 406 U.S. 356 [1972]), and has found six-person criminal juries constitutionally permissible, at least where the requirement of unanimity is retained (Williams v. Florida, 399 U.S. 78 [1970]).
* Article 32 of the Uniform Code of Military Justice provides that no charge may be referred to a general court-martial until a thorough impartial investigation has been made. At an Article 32 hearing, an investigating officer conducts a pretrial investigation at which witnesses (including those requested by the defendant) testify under oath. The investigating officer recommends whether there should be a court-martial.
* Even when restricting themselves to the findings that they can realistically hope to make, firearms experts, like all forensic technicians, are far from infallible. In a 1977 Law Enforcement Assistance Administration test, given a slug fired from a .38 Smith & Wesson special revolver, and asked to identify the possible manufacturers of the firing weapon, 10 of 121 forensic labs did not list Smith & Wesson. Given a slug fired from a Beretta nine-millimeter Corto .380 auto, 31 failed to mention Beretta. (Crime Laboratory Proficiency Testing Research Program Report, Law Enforcement Assistance Administration, United States Department of Justice [Washington, D.C.: October 1978].)
* Common law required a person to “retreat to the wall” if he safely could, before using deadly force to defend himself, except that—this is the “castle doctrine”—he was under no duty to retreat if attacked in his own home. The “American rule,” followed in most states, imposes no duty to retreat. The military rule splits the difference, holding that the defendant’s retreat, or failure to retreat, is one factor to be considered in light of all the circumstances in deciding whether he acted in self-defense.
* Or Fifth, depending on how you count.
* I found out later that the government was unaware of the existence of the paperboy.
How Can You Defend Those People? : The Making of a Criminal Lawyer Page 36