Defense Newsroom

Appellate Litigation Has Impact Throughout The District’s Criminal Justice System

The Appellate Division’s appellate litigation has impact throughout the District’s criminal justice system as decisions in their cases often establish or clarify the standards trial court judges and litigants must follow in criminal and juvenile cases. The complex and novel legal issues the Division is called upon to address therefore are best handled by experienced and talented attorneys – which the Division has no lack of. In Fiscal Year 2003, even the highest court in the land looked to the Appellate Division for assistance.

Supreme Court litigation: The Supreme Court of the United States appointed an attorney from the Division to represent an incarcerated man where the federal courts of appeals had issued conflicting opinions on the applicability of a rule to lawsuits challenging the conditions of confinement, but not implicating the fact or duration of confinement, i.e., matters lying at the core of habeas corpus jurisprudence. The Supreme Court recently ruled unanimously in favor of the arguments advanced by the PDS attorney. Failure to disclose bias: In a case in which for ten years the Appellate Division challenged the United States Attorney’s Office’s refusal to comply with its obligation to provide exculpatory information, the trial court issued an order granting a new trial for a client whose trial on a murder charge was marred by secret payments from the government to the sole eyewitness and by a prosecutor who incorrectly argued to the jury that the government had done nothing to benefit the witness. The Appellate Division obtained two reversals of trial court post-conviction rulings before the trial court ultimately decided that PDS’s post-conviction pleadings warranted a new trial.

Prosecutorial Misconduct: In another lengthy case involving exculpatory evidence, the Appellate Division advanced First Amendment claims to convince the United States District Court for the District of Columbia to unseal the post-conviction proceedings in a federal court conspiracy case, where the court documents included, among other things, a Department of Justice Office of Professional Responsibility report concluding that a prosecutor had committed misconduct by misusing government funds to pay government witnesses and their family and friends. Although the District Court ultimately ruled in PDS’s favor in November, Appellate Division lawyers had been litigating for almost two years to allow the light of public scrutiny to shine on court proceedings. The Appellate Division has been seeking a new trial on behalf of that same client as a result of gross misconduct by the same former Assistant United States Attorney whose malfeasance is detailed in the now-unsealed OPR report. Among other claims, our motion shows that the prosecutor misused a fund for the payment of court witnesses to provide secret payments to witnesses at the trial of our client. This misconduct parallels some of the misconduct that the Justice Department’s own internal investigation uncovered in the federal court case.

Government admissions: In still another case involving the government’s duty of fairness, the District of Columbia Court of Appeals ruled that certain statements in a search warrant affidavit endorsed by an Assistant United States Attorney constituted government admissions and could be introduced by a PDS client at his trial. This ruling is important because it meant that the government would pay an evidentiary price for taking opposite positions on critical factual questions in two different proceedings. The case is also important because it is one of the most developed decisions on the question of when government submissions in court constitute admissions.

Attorney-client privilege: In In re PDS, the Court of Appeals wrote an opinion that may be one of the most extensive discussions of an issue of national importance – namely the scope of the crime fraud exception to the attorney-client privilege. In this case, a trial judge had held PDS in civil contempt (but stayed execution of any penalty upon PDS’s representation that it would comply with the court ruling if affirmed on appeal) for refusing to disclose information it believed to be protected by the attorney-client privilege. The Court of Appeals concluded that PDS was acting within the highest standards of the bar in investigating the case as it had, and that the information held by the PDS lawyer was protected by the attorney-client privilege because the elements of the crime fraud exception had not been shown.

Habeas corpus litigation: In a series of cases involving Appellate and Special Litigation Division attorneys, we have been litigating the question of whether District of Columbia judges have habeas corpus jurisdiction over cases involving clients with District of Columbia law issues, but who are incarcerated outside the District. We have litigated this question in both the District of Columbia Court of Appeals and in the United States Court of Appeals for the District of Columbia Circuit. The question is now pending before the United States Supreme Court in a separate case. The question is immensely important to our clients and to the citizens of the District of Columbia, because in the wake of the Revitalization Act, District of Columbia prisoners were moved from Lorton to non-District facilities. Because these prisoners were sentenced in the District of Columbia courts for violations of local District of Columbia laws, and because their parole is governed by laws unique to the District of Columbia and generally involve facts that occurred in the District of Columbia, the most logical forum for hearing D.C. prisoner claims is the District of Columbia courts where the bench and bar have substantial expertise in addressing D.C. law questions. In fact, the District of Columbia government has supported PDS’s position – not the federal government’s – in this litigation.