Welcome to federal court counselor

April 24, 2013

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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