Welcome to federal court counselor

Wednesday, April 24, 2013

I write today to introduce you to the practice of criminal law in federal court. It’s called trial by ambush.

Say goodbye to the practice of criminal law in state courts that we have been following in Florida in Trayvon Martin’s case where pursuant to the Sunshine Law:

1. discovery released to defense counsel long before trial also is released to the public,

2. defense counsel can depose the prosecution’s most important witnesses under oath before trial, and

3. pretrial hearings are televised as well as the trial.

The only discovery released to defense counsel before trial in federal court consists of

1. the complaint and the affidavit of probable cause filed in support of the complaint (I posted a link to these documents in my post titled, Update on Dzhokhar Tsarnaev’s initial appearance today)

2. the indictment returned by the grand jury,

3. the client’s statements to law enforcement (some and perhaps all statements by Dzhokhar Tsarnaev may have been obtained in violation of Miranda v. Arizona, 384 US 436 (1966).

4. the search warrants for property owned by the defendant, affidavits for the search warrants, and an inventory listing all of the property seized.

Pursuant to the Jencks Act 18 USC 3100 et seq., defense counsel in federal court are not entitled to know the identities of the witnesses the government intends to call during the trial until they are called to the stand to testify and they are not entitled to be provided with copies of their statements to law enforcement officials and their grand jury testimony under oath until after they have finished testifying on direct. This incredibly harsh and brutal law has been modified somewhat to avoid the loud complaints of angry and impatient jurors inconvenienced by a multitude of interminable recesses spent twiddling their thumbs wondering What is going on while defense counsel frantically reviews the Jencks material in an effort to construct an effective cross examination of a witness who just completed their direct testimony.

It did not take long for judges and prosecutors to realize that discovery pursuant to the Jencks Act had to be modified to accommodate the judicial need to try cases expeditiously without lengthy interruptions to review Jencks material.

Since federal criminal trials are always scheduled to begin on Mondays, the prosecution decided to deliver a witness list and the Jencks material for each witness to defense counsel’s office just before the close business on Friday afternoon. This would allow defense counsel, so the argument went, a reasonable opportunity to familiarize himself with the discovery and to be prepared to cross examine prosecution witnesses without requesting a recess. This modification is now the standard operating procedure in most federal courts, although increasing numbers of prosecutors in many districts have been moving in the direction of providing discovery earlier in an effort to convince defendants and their counsel that resistance is futile and the best result possible is to plead guilty and agree to testify against other defendants.

Some of you may think that does not sound so bad.

You forget where you at.

You be in federal court where the feds specialize in prosecuting multi-defendant, multi-jurisdiction conspiracies involving wide ranging investigations that lasted many months and sometimes years. Rather than thinking of the discovery in terms of a total number of pages, federal criminal defense lawyers refer to it in terms of the number of banker’s boxes needed to contain it or the number of trips we had to make to the courthouse each day to transport our complete set of banker’s boxes to the courtroom and the time it took us to set up and know where to find stuff.

Criminal defense attorneys who practice in federal court have to learn how adjust. I actually got to the point where I preferred trying cases in federal court because I liked the polite, respectful and professional atmosphere. The courtrooms are substantially larger than state courtrooms, so much so that voice amplification often is necessary. Lawyers and judges know their stuff and they come to court prepared to do battle. Defendants are treated with respect. Lawyers do not try their cases in the court of public opinion and you do not see much grandstanding.

I realized the first time that I appeared in federal court, I had to substantially improve my game and I did. There were many good role models for me to emulate.

Fortunately, I had some success in federal court.

I will never forget standing with my arm around my client holding him upright as he sobbed with joy as the judge read 26 consecutive verdicts of not guilty acquitting him of all charges in a major multi-district cocaine conspiracy.


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37 Responses to Welcome to federal court counselor

  1. groans says:


    I thought this was just a mystery to me, but apparently it’s a mystery to the “main stream media” now, as well:

    What procedural (or other) mechanism might have led to a federal judge (or magistrate?) and a federal public defense lawyer showing up in Dzhokhar Tsarnaev’s hospital room to hold an “initial hearing” (or whatever it was)?

    It’s hard to imagine that the suspect – in view of his serious medical condition – could have made that happen. But if it hadn’t happened, I question whether Dzhokhar would have been informed of his Miranda rights even by this point in time.

    So, it was a welcome development, in my view. But “mysterious” developments – even good ones – give me cause for concern down the road.

    Do you have any thoughts or insights?

  2. aussie says:

    No wonder the Federal courts have such a high conviction rate.

    If the defence is given just a few days to go through literally tons of evidence, it’s the same as giving all the evidence in some foreign language.

    It is preventing the preparation of a proper defence. Doesn’t sound terribly Constitutional to me.

  3. fauxmccoy says:

    thank you professor for contrasting the procedures in federal court versus state criminal proceedings. i suppose this is where defense attorney wheat and chaff are duly separated. federal defense attorneys are to be admired in my book.

  4. pat deadder says:

    wow Mr. Leatherman you must be an awesome lawyer I mean how often does that happen..It doesn’t seem fair to me that the defense has no chance to prepare just because it’s a federal case.I never had any doubts about you being an excellent lawyer by the way.Does it matter what Judge presides over the case or do defense attorneys say oh no not that Judge.

    • We had our preferences that, for the most part, were based on how our personalities meshed with each judge.

      Fortunately the judges were excellent for the most part and we got to know them pretty well. We could accurately predict most of their rulings because they consistently followed the law ruling as we generally expected them to rule.

      Federal court in Seattle resembles a large family. For those of us who were fortunate enough to always have one or more cases pending at any given time, we became part of the scene, walls were lowered, masks dropped and we caught glimpses of the judges, prosecutors, each other, probation and parole officers, court personnel, and U.S. Marshals as fellow human beings engaged in a group venture with separate and well defined rolls to play. We never socialized outside the courthouse, except for the occasional Federal Bar Association dinner. Inside the courthouse we felt welcomed, at home among friends and respected. In short we felt like we knew each other even though we knew little about each others personal lives.

      • pat deadder says:

        Thank you for that .The people of The United States of America are lucky to have you and others like you.I can understand how lawyers can suffer from burn out.It would be difficult to deal with the highs and the lows.

      • But you guys had to be trustworthy and ethical to be respected and successfully do your jobs. you all had to work together everyday.
        So you can’t keep doing things intentionally dishonest, using dirty tricks like omar and west are doing in this case! Everyone knows the rules and everyone is expected to play by them.

        Just like the you Professor can see though omar’s BS, the judges have to see through them too.
        What are the judges and other lawyers supposed to do when they are dealing with this kind of unprofessional behavior?.

  5. Xena says:

    (Catching up)

  6. Malisha says:

    How do I find the most recent LLMPapa video?

    • ay2z says:


      • Malisha says:

        But I can provide the “answer” in 140 characters:

        “Following was not what my brother did; he was just a decent American looking for an address in the same direction as a dangerous fucking punk.”

        Or, in fewer than 140 characters, Junior could just give up all the bullcrap and say:

        “We’re liars; he chased down and killed a kid we both agree should be dead.”

  7. ay2z says:

    The new witness deposition list from BDLR includes ‘Witness V’.

    I’m going to take a wild guess and speculate this could be ‘sis’. Sis was texting her Tugbro in the afternoon before he left for the store (senior zim on his first national media interview) yet she is not on the family list.

    We know she could be important, given the statements of fogen’s father about the texting back and forth, and we know from Papa’s video, ‘The Beginning’.

    Rachel, thanks for the heads up for the new Papa film, will watch.

    • ay2z says:

      Hol on, do we understand from our most excellent film-creator-writer-poet and humourist extrordinaire, that fogen is on the state’s witness list?

      “WITNESS V” ???

      Wow….. call him to the stand, and see if he takes the 5th, all the warnings in the world for jurors to not read anything about guilt into that, will not prevent jurors from knowing this is the person who has claimed immunity who is not talking in his own immunity hearing.

      Just wow…. any coincidence that there are three members of the Zim tribe listed by name, then jumps to Witness V (V for five?)

      That still leaves iV open for grabs, eh sis.

      • ay2z says:

        That can’t be…. must be ‘sis’ because the state would not have deposed Tugboat fogen.

        That list was about depos.

        And Papa’s congrats was about fogen being his own witness as the scholarly-learner of rules and proeedures from his NW fundamental training instructions.

      • Malisha says:

        They can’t make a defendant a witness in his own trial. It would violate the Fifth Amendment.

      • ay2z says:

        Malisha, yes, thanks! And also, a witness can’t be called knowing that the witness will simply take the 5th,, as I understand.

        Could be Sis, fogen’s rock as he described her.

        Here’s Bernie’s motion:

        Click to access zimmerman-request-court-inquiry-042413.pdf

      • ay2z says:

        Duh…. Papa is responding to junior of course, including the congrats for making witness list.

      • ay2z says:

        In Bernie’s motion, he seems to be doing the defense attorney’s duty to ensure the defendant is informed of his rights.

        Or the defense is setting up his client’s post-trial immunity claim by

        1. ensuring he was not at the hearing in which Judge Nelson cancelled the 2 weeks in April set aside for the SYG immunity hearing

        2. failing to put the defendant’s full awareness of what was going on in court when he wasn’t present, on the record.

        Was MOM trying to pull a fast one on the court and on BDLR by waiving client appearance at the hearing on 3/5/2013 ? Will he now cry foul because Judge Nelson did not follow through with the scheduled hearing end of March when no one filed any motions or advised she should still hold that hearing date open?

        MOM complained about that to his media, how unfair she was for cancelling and not telling them and his minions repeated that in their tweets and tootles.

        Not only it hasn’t worked, if so, look at the timing BDLR filed this motion, 2 days prior to the deadline of April 26th, 2013– the date that the court ordered ‘any immunity / (Self-Defense/Stand Your Ground) motion to be filed and heard on or before.

        By the time the next hearing rolls around, that window will be closed.

  8. Trained Observer says:

    In federal court … “Lawyers do not try their cases in the court of public opinion and you do not see much grandstanding.” — Frederick Leatherman

    Guess O’Mara doesn’t have much of a future there.

    Congratulations on the 26 in a row “not guilty” declarations on each charge. Doubt that you slept for a week after the pyschological high on that success.

  9. FactsFirst says:

    De la Rionda says Zimmerman needs to make up his mind: The state opposes combining the hearing and trial, and doesn’t want Zimmerman to be able to claim immunity after trial, if he’s convicted.

    The motion is set to be argued at a hearing next week. Prosecutors asked that Zimmerman attend the hearing, likely in the hopes that the judge would question him then if she rules in the state’s favor.

    The state also filed notices indicating prosecutors deposed Zimmerman’s parents, his brother and several of his friends last week in Sanford, where Zimmerman’s trial is currently set to begin June 10.


    • Rachael says:

      Thank you! And LLMPapa has a new video as of yesterday, the best yet (of course I say that about all of them). Didn’t want to hijack the topic here by posting it, but y’all go take a look at it when you have a chance.

    • Two sides to a story says:

      That is darn confusing and I see why the state is opposing it. As with everything, Fogen and company want it both ways.

    • LeaNder says:

      Good article by our host, but one OT comment nevertheless.

      I basically think that Weiner is the much better journalist than Stutzman, at least I have not seen him covering his tracks as she does. But it feels this statement is not only misleading but wrong:

      Even if Nelson was wrong when she rejected that request, the appeals court shouldn’t get involved because Zimmerman won’t suffer irreparable harm, wrote Assistant Florida Attorney General Pamela Koller.

      It surely may be asking to much to demand a journalist reads a 41 page long response, before writing two tiny passages. So the question would be whose wrong argument he may possibly have picked up in this context.

      I do not think that Pamela Koller argued in any of her many lines that Nelson in fact erred, quite the opposite. Pamela Koller special review of the defense’s motions to dispose Benjamin Crump, makes me aware of something I seem to have missed. That maybe his passing the audio files on to the FBI could be considered as waiving attorney privilege too. And I think that adds an interesting angle. Just as his intention for going public obviously had to do with it.

      “Also, that Mr. Crump waived any privilege by allowing other persons to be present during the interview as well as his admission in his affidavit that he provided the audiotape to law enforcement, thereby risking “potentially making a limited waiver of what, im my opinion, was privileged and otherwise protected confidential material.” p.26

      In any case she puts the defense argument that Crump waived his privileges by going public into an interesting light. A fact that defense has avoided in their diversion-attempts-of-an-argument, that if Crump in fact had knowledge of SPD misconduct, it may be important for them too, because after all their client was charged based on the work of SPD too.

      But this part seems to directly contradict what Weiner writes:

      “Moreover, the facts in this case are unique involving a civil attorney hired by the parents of a shooting victim for the dual purpose of pursuing civil remedies as well as to promote the filing of criminal charges – an attorney who locates and interviews a material witnesses and then turns over the recorded interview to law enforcement. Because it is unique, there is no authority on point such that Petitioner cannot establish a departure from the essential requirements of law.” Page, 29

      Bottom line: I may have read Koller’s argument cursorily, but I don’t think she suggests that Nelson erred or could have erred. She seems to in fact argue that due to the “uniqueness” of the case she cannot have “legally” erred since there is no ( I expect her to have checked that) comparable case law.

    • whoaaaa I didn’t know Bernie deposed the zimms! oh I wish I could hear those!! damn, these damn florida restrictions on discovery!!LOL
      yet, Joonya is still a twating all day steady!!

  10. cielo62 says:

    >^..^< More whisker twisting processes.

  11. parrot says:

    BTW, Professor, congratulations on that 26 verdict win. I know how rare those home runs are in the big leagues of federal court.

    • Two sides to a story says:

      Wow, just wow. Great save, Prof.

      I have an acquaintance whose 18-year-old son was arrested by fed agents – probably border patrol – near the Mexican border with a kilo of marijuana. The biggest problem was that the two boys fled once spotted. The feds put him and his frined in federal prison for 8 YEARS in another faraway state, preventing the families from seeing them much. It was insane and the sentencing would likely have been much lighter had they been charged and tried by the state. These were pretty good kids, actually, just prone to some small rebellions.

  12. parrot says:

    In this case, discovery would have to include photographs as well as audio and video recordings.

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