Reviewing the transcript from a hearing or trial you have done can sometimes be a humbling experience. What you may have remembered as a dramatic moment at trial can come across as flat on the printed page, and a good stenographer will throw in every “er,” “um” and “okay” to remind you that you may not be quite the eloquent trial attorney you thought you were.  Sometimes you stumble over a question or miss an area for possible inquiry. And then there are the moments – however brief — in which you seem to be doing everything right.

Here is a brief excerpt from a jury trial I did recently in Virginia.  My client was charged, among other things, with being a felon in possession of a firearm. Tucked away within the 300-page transcript is this gem of a redirect to “rehabilitate” my client after the government impeached his testimony on cross-examination. As for the times during the trial in which I was less than perfect, well, I’ll allow them to remain buried within the transcript, a secret known only to the stenographer and me.

Q:            Mr. Norfleet.

A:            Yes.

Q:            Did you ever do a quick draw with the weapon in the mirror?

A:            No.

Q:            Did you ever say you did a quick draw with the weapon in the mirror?

A:            No.

Q:            And who said that you did?

A:            My previous lawyer.

Q:            At the time of previous testimony, did anyone ever ask you what you meant by toying with the weapon?

A:            No.

Q:            Now, when you sold the car, this was a person-to-person transaction?

A:            Yes.

Q:            So there was no business involved?

A:            No.

Q:            Did you keep any records of that?

A:            No, I didn’t.  I didn’t feel no need to.

Q:            When you found out that the firearm was in your car, why didn’t you turn around and drive back to Melissa’s house so that she could take the firearm out of your car?

A:            I just wasn’t about to drive around with a gun, you know.  I wasn’t even thinking about “oh, I’m a convicted felon.”  All I’m thinking a gun – a gun in my car, you know.  I wasn’t going to do it.

Q:            Why didn’t you leave the firearm in the car and call the police?

A:            I am a convicted felon.

Q:            Why didn’t you just leave it in the car for the guy you sold it to to make it his problem?

A:            That just sounds crazy.

Q:            Again, what were you thinking when you brought the firearm into your house?

A:            Take it, hurry up, put it away somewhere, need to hurry up and run down to get to the Croppers before they closed.  That was like the only thing that was really on my mind at the time.

Q:            Thank you.  I have no further questions.

I botched the investigation.

I went to the store on Upper Wisconsin Avenue in which my client was alleged to have committed a robbery.  While there, I neglected to look for a critical piece of evidence:  whether or not there was a surveillance camera over the cash register.  As a result, my investigator Wayne Marshall had to go back to the store to do the investigation right. I miss things that to him are second nature.

Marshall and I have been working together now for less than a year, mostly on court-appointed juvenile cases.  Both of us are relatively new to the area. Marshall gave up a career as a New York police officer after being shot twice in the chest. He drove himself to the hospital.  The triage nurse, busy with some paperwork, told him to take a seat in the waiting area.  “Just a moment, sweetheart,” she told him.  “I’ll be right with you.” He still carries around two bullets in his chest.

I am jealous of the time he devotes to other lawyers’ cases and I know that I can sometimes be difficult to work with.  I fret.  I send him late night text messages and emails that increase with frequency as the trial date approaches.  Fortunately, he too is an early morning person and we have often communicated several times before sunrise. That’s okay, he told me the other day when I apologized for my micro-management.  You keep me on my toes.

Marshall is a chameleon.  He is just as at home in the suburbs of Maryland and Virginia as he is on the streets of the District.  Yet it is his entrée into the lower-income homes on the east side of the Anacostia River that I value the most.  Many of the families there don’t quite know how to deal with an uptight middle-aged man from across town who still doesn’t know how to dress down.  With life pouring out into the street from row houses, and doors always open, their world is as unfamiliar to me as the green expanse of my world is to them.

Although the families and I will come to know each other very well by the time the case concludes, the first visit to a client’s home is often uncomfortable for both parties.  I will have already met the client and family at the initial hearing at which I was appointed.  But that meeting is brief and harried, done moments before we go before the judge.  The parents are angry and upset, and the child has just spent the night in custody.  When I walk over to the cell-block to introduce myself before the hearing, I am just one more person who will prod the child with questions.

The first time I visited a client at his home, I made the mistake of going into the home before Marshall had arrived.  The son and I sat on an overstuffed couch in the living room while the mother cooked bacon and eggs in the kitchen next door, all the while trying to keep an ear out on our conversation.  Then Marshall arrived, and the mother breathed a sigh of relief.  Thank God, she said.  I didn’t realize we had a brother working with us.

Marshall and I stick out a little bit more when I accompany him to the alleged crime scene.  We usually bring the client along with us if the child is not being held in secure detention, and the ride there is a good way to get to know the client in a more relaxed setting.  We discuss football and school.  Although Marshall and I do most of the talking, you can see the first signs of the client beginning to open up.  Our relationship with the client will be very different at the next court listing.

Marshall assures me I do not cramp his style during the crime scene investigations. “Not at all, Mr. Koehler,” he says when I first bring this up.  We always address each other formally while in the presence of clients.  It is an affectation he may have gotten from me.  “You give me credibility.  Otherwise I am just a guy with a camera.”

Like the work of a criminal defense lawyer, much of what an investigator does never sees the light of day.  You work and you work and, if the client eventually takes a plea, it is as if the work was never done at all.  You mark the file closed and put it into your filing cabinet.  It is like draining a bathtub so that you can refill it with something new.

But then there are the cases in which it all comes together on the day of trial.  Last week I watched Marshall, dressed in a shirt and tie because we thought he might be testifying, coming down the court hallway with two of our witnesses, and I breathed a sigh of relief for the first time in a couple of days.  Because you never know if the witnesses will actually come.  When I saw Marshall with the witnesses, I knew we would be ready.  So did he.

I have been called to testify in a criminal case. A couple of weeks ago I represented a woman seeking a civil protection order against a former boyfriend. With the boyfriend now facing criminal charges for contempt of court, certain admissions he made to me during the course of that representation have become relevant to the criminal proceedings.

It feels strange to be working on the same team as a prosecutor I have opposed many times. Yes, yes, I tell her when she emails me. Any of those dates would work fine. Fortunately, we have a good relationship and I promise to be a cooperative witness who simply answers the questions that are put to me. Because I know from personal experience that people who are familiar with the system can sometimes make the worst witnesses.

A couple of years ago in Philadelphia, I represented a client in a case in which the complaining witness was a supervisor from the district attorney’s office.  Speaking to the supervisor before trial, I took perverse pleasure in hearing her complain about her mistreatment at the hands of police officers and the junior prosecutor who was assigned to the case. This system we have, she said, really stinks. I can’t believe they made me wait that long at the police station. I can’t believe that no one contacted me to discuss this case until the morning of trial.

When she finally made it to the witness stand, she didn’t like the questions that were put to her on direct because, after all, she knew much better.  And, despite her many years of experience as a trial lawyer, she seemed personally affronted by my cross-examination. She may have been expecting professional courtesy.  What she got instead was an education in humility.

Michael Bruckheim was scheduled to cross-examine Lucas Zarwell, the chief forensic toxicologist in D.C., and a group of DUI lawyers had gathered outside Room 116 yesterday afternoon shortly before 2:00 pm.

Zarwell testified before city council last May that urine samples taken by police to test suspected drunk drivers are not reliable enough to accurately measure a person’s blood alcohol content:  “If you’re going to look at urine concentrations of alcohol and science, there is a very loose correlation,” Zarwell stated.  “There has been several studies done on it, but currently if you are just voiding your urine or urinated into a cup and there is alcohol in that, it does not correlate to a blood concentration.  It could be higher, as much as 40 percent higher.

It could also be 40 percent lower.

And yet the government is continuing to proceed with DUI cases in the District using urine samples as both per se and circumstantial evidence of the defendant’s intoxication at the time of driving.  The government’s expert witness?  Lucas Zarwell.

In addition to offering moral support for Bruckheim, the DUI lawyers who came to watch the trial were also interested in Judge McCabe’s rulings on Bruckheim’s anticipated hearsay and Confrontation Clause objections.  In Bullcoming v. New Mexico, the U.S. Supreme Court held that the government cannot meet its obligations under the Sixth Amendment’s Confrontation Clause through “surrogate” testimony.  Specifically, the Court held that the government cannot substitute the testimony of a lab technician who was familiar with the procedures used in analyzing a blood sample for the presence of alcohol for the testimony of the technician who actually conducted the test.

And yet here was Lucas Zarwell to testify not on the urinalysis he himself had conducted but on the results of a urine test he had supervised.  As in other cases in which he has testified recently, Zarwell often spoke in the passive voice:  “It was re-tested and confirmed.”  When he did use the active voice, he made liberal use of the first person plural:  “We used a headspace gas chromatograph.”

Bruckheim was relaxed and friendly with his cross-examination.  Good afternoon, Mr. Zarwell, he began.  How are you today?   He took his time in laying the foundation for his questioning, despite Judge McCabe’s growing impatience, and after an hour or so of the cross-examination, Zarwell began to show signs of fatigue.  Forty degrees Centigrade, he testified in response to one of Bruckheim’s questions.  Don’t ask me to convert that into Fahrenheit.

Judge McCabe eventually ruled against Bruckheim’s client on both the hearsay and Confrontation Clause issues; this is consistent with the judge’s holdings in other recent case.  The judge told Bruckheim:  You can argue the issue when it comes to the weight I assign Mr. Zarwell’s testimony.  But I am not going to rule out the testimony on the basis of the hearsay and confrontation issues.

More importantly, in ultimately arriving at a guilty verdict, the judge not only used Zarwell’s testimony as circumstantial evidence of the defendant’s intoxication, he also concluded that Bruckheim’s client was guilty of the per se offense.  In other words, he concluded that the urine test alone was enough to make out the intoxication element of the offense, even apart from the police officer’s observations of the defendant’s behavior that night.

The Confrontation Clause issue raised by the Supreme Court in Bullcoming is just one more challenge for Office of the Attorney (OAG) when it comes to an already beleaguered DUI program in the District.  The program was widely discredited with revelations beginning in February 2010 that, due to fundamental problems with the way breath test machines were calibrated, D.C. breath test scores over the past ten years may have been inaccurately reported.  Since that time, a number of police officers involved with the program have been reportedly investigated for falsifying data.  More recently, according to Fox News, at least one Assistant Attorney General has been referred to the D.C. Bar Counsel for possible disciplinary action after police officers told city council she had asked them to lie under oath.

Although the OAG prevailed on the issue yesterday afternoon, a group of lawyers led by Bryan Brown and Thomas Key is looking into a potential appeal of the Judge’s decisions based on Confrontation Clause issues.  Stay tuned.

A couple of years ago, a Court of Common Pleas judge in Philadelphia banned me from her courtroom for life.  Both the stenographer and her law clerk looked at me with sympathy when the judge issued the edict. Maybe they thought I would be upset.

In fact, running a list in this judge’s courtroom was viewed to be a tremendous hardship among us public defenders, and the first thing I did after she issued the order was to make sure that the stenographer had captured the exchange:  Did you get that?  All of my colleagues were extremely jealous of me when I returned to the office, and I had to remind my supervisors of the ban every time they drew up a new schedule.   Because they kept trying to send me back there.

My offense?  I asked the judge for a recusal on the morning of an aggravated assault bench trial.

The sheriff complained to the judge upon bringing my client into the courtroom that my client had been disruptive in the holding cell, and, as the sheriff unshackled my client and seated him next to me at the counsel table, the judge cautioned me to sit a good distance away from him.

The judge must have seen the look in my eyes and tried to head off my motion.  Mr. Koehler, she said. I have to warn you that if you are about to ask for a recusal, the first thing I will have to do is call your supervisors at the public defenders office to complain about you.  I will then ban you from ever appearing in front of me again.

I couldn’t resist the dare.  Nor did I have any choice.  Why I was doing a bench trial in front of this judge on this type of case will have to be the subject of a different blog entry (one that will not be very complimentary of the Philadelphia PD’s office).  But once the judge had expressed concern for my physical safety, I knew there was no way my client could ever receive a fair trial in front of this judge, even apart from all the other problems with this particular judge.  (Fortunately, she was later pushed off the bench, as I understand it, for substance abuse problems and multiple ethical violations.)

It is one of the law’s many fictions that a juror who has just heard a damaging and inadmissible piece of evidence can be successfully instructed to disregard it.  As one cliché puts it, you can’t unring the bell. Likewise, even assuming this particular Philadelphia judge had the wisdom of Solomon and the fairness of Mother Teressa  (she didn’t), it would be difficult to believe that she could put aside what she had just heard from the sheriff when deciding whether he had acted aggressively on the day in question.  As a result, asking a judge to recuse herself and to send the case to another judge for trial is often a difficult but necessary thing to do.

That’s why, however much I might prefer the D.C. court system to the one in Philadelphia, I was surprised to encounter the “one family, one court” juvenile system here.

I fully understand the rationale behind it.  A family court judge takes a much more holistic approach to dealing with the accused – the respondent — in a juvenile case.   He is interested not in meting out punishment but in rehabilitating the juvenile so that the juvenile can put his life back on track and get back into the community.  It therefore makes sense for the same judge to deal with the juvenile each time he returns to the system with a new charge.  It also makes sense for the same judge to deal with all the kids from the same household.  I was surprised recently when Judge Ross knew far more about a juvenile’s living conditions than I did as the juvenile’s lawyer.  It turns out that the judge had been dealing with the same family for years through an older child in the household.

And, in fact, based on my still limited experience, the system in D.C. does seem to work.  Judges take the bench on time.  They listen to you.  Applying the law, they throw out cases when they need to.  Most importantly, they appear to have genuine concern and affection for the young people who appear in front of them.

With some unfortunate exceptions, the same holds true for probation officers, social workers and shelter house staff. They return phone calls.  They come to court.  They are often aware of problems before you are and can often be convinced try to work something out with you before taking the matter to the court.  Finally, the more rabid law-and-order prosecutors don’t seem to end up at the Juvenile Division of the Attorney General’s Office.

Where the “one family, one court” approach becomes problematic is during the guilt-finding phase.  As it turns out, D.C. family court judges have very good memories that are aided, I assume, by the private notes that they take on each respondent. I appeared in front of Judge Lee the other day on behalf of a client who had just been arrested on a new charge, and was amazed that the judge not only remembered little things about my client (that he liked to play basketball, what he had said at the last listing on the other case), the judge also remembered details about the client’s mother.

Having the judge remember details like this can make the juvenile feel cared for and respected.  I was often struck by how many adult clients in Philadelphia seemed convinced that the judge took a personal interest in their affairs.  Only when this notion began to interfere with my representation would I disabuse them of this notion:  the judge really has no clue who you are.  But she will be plenty angry if you violate the terms of your probation.

This is not true in D.C. juvenile court. In fact, the judges there may sometimes remember clients all too well.  A Family Court judge recently found one of my clients guilty after trial of “carrying a dangerous weapon.”  You have got to stop carrying kitchen knives around in your pocket, the judge told the juvenile during the disposition hearing.  Heck, you should have learned that lesson two years ago when I convicted you of the exact same offense.

So what can you do as their lawyer to rectify this?  The question of recusals did not come up in our training for the panel; nor does it appear to be included in any of the voluminous materials we were given.  So I asked some of my colleagues who have been doing this a lot longer than I.  They laughed.  Good luck with that, they said.

For one thing, there are only four judges who currently hear juvenile cases in the District:  Judges Milton Lee, Maurice Ross, Maribeth Raffinan, and Robert Rigsby (who just replaced Judge Broderick).  With many kids picking up multiple cases, you would rapidly run out of judges to hear cases if each charge had to go in front of a different judge.

I suppose you could also run into a problem with “forum shopping”; that is, defense lawyers asking for a recusal in order to put the case in front of a different judge because, let’s face it, some judges are more defense-friendly than others.   And, of course, there is always the reluctance from a tactical standpoint to subject your client to an annoyed judge who has just denied your recusal motion.

We are thus left with the fiction that a judge can completely clear her mind of everything else she knows about your client when determining the client’s involvement in an offense. There is always the ideal of what we would hope to accomplish with the criminal justice system. And then there are the accommodations we make every day to reflect reality.  Sometimes the “good enough” will just have to do.  Except for those times, of course, when you are the defendant and it doesn’t.

Police officers love the consent exception to the Fourth Amendment requirement for a warrant almost as much as they love plain view.  It is because the exception makes things so easy for them:  They can do almost anything they want so long as the suspect agrees to it.

The suspect’s consent is usually given orally.  Yes, please subject me to a humiliating search of my body so that you can discover the contraband I have placed in my right front pants pocket. And when, inevitably, the suspect says he didn’t consent, who is going to believe a suspected criminal over the word of a police officer?

To protect themselves, the officers will sometimes get the suspect to sign the consent form.  How many people actually read something they are asked to sign?   Police will occasionally resort to a little trickery in order to facilitate this written consent.  Sign here, they tell the suspect’s mother, or we will have to take your son into custody.  The son is now in custody precisely because she signed the consent form.  Or didn’t.  The search proceeds anyway.

The “inevitable discovery” rule is a valuable component in the government’s arsenal to bring in evidence against a defendant.  Drawn from the U.S. Supreme Court’s decision in Nix v. Williams and serving as an exception to the fruit-of-the-poisonous tree doctrine, the rule provides that evidence obtained by illegal means may nonetheless be admissible if the prosecution can show that the evidence would have eventually been legally obtained anyway.

The same principle of inevitability should also apply to consent. It is a great legal fiction that any reasonable person would feel free to simply walk away when confronted by a uniformed police officer on the street. And how about a person who knows he is about to be searched anyway?  The subject of the investigation figures a preemptive consent will avoid antagonizing the police officer any further:  I might as well consent; the police officer is going to discover the weed in my pocket anyway.  In this sense, consent becomes inevitable.  Moreover, consent obtained through police trickery or ultimatum can never characterized as  truly voluntary.

Despite a heavy burden on the government — in theory at least — to prove the voluntariness of consent, a police officer is not required to inform the suspect that s/he has the right to refuse.  A prophylactic rule – similar to the Miranda warnings – that required the police officer to inform the subject of his/her right to withhold consent could go a long way to rectify this inherent imbalance in a citizen’s dealings with the police.  It would advance the firmly established legal principle that any waiver of a constitutional right must be truly knowing, intentional and voluntary.

After finding my client guilty of simple assault, the judge orders my client to write a letter of apology to the complaining witness.

I can understand an apology after a guilty plea.  After all, acknowledgment of remorse could be an important part of the rehabilitation process.  What I don’t understand is the need for an apology after the defendant has challenged the charges at trial and lost.

A number of years ago in Philadelphia, I had a case that was right out of an afterschool special.  The complaining witness – an 85-year-old woman – had hired my client to wash her car.  At some point, my client went into the woman’s house to use the bathroom.  And at some point the woman discovered that cash was missing from the dining room table of her house.

I met with the client before trial to discuss trial strategy.  He said there was no way he was going to make the old woman testify.  He wanted to plead guilty but only if he could be given the opportunity to apologize to her for betraying her trust.

The prosecutor was surprised by this unusual condition but readily agreed.  The woman was brought up to the bar of the court at the time of the guilty plea, and my client apologized.

The woman looked at him.  “Young man,” she said, though my client was well into his fifties.  “You were forgiven at the very moment you took that money.  And, by the way, you did a very good job washing my car.”

It is, however, completely different after a lost trial. In that case, a defendant who has just been found guilty of a charge she has contested may not be feeling very charitable.  The order to write a letter of apology adds insult to injury.

My client will write a letter of apology, I tell the judge after consulting with my client.  But I cannot guarantee the apology will be a sincere one.

The judge is annoyed by this.  Having determined in her own mind that the defendant is guilty after considering all the evidence, the verdict for her has become the objective truth. Fine, she says. I’ll just order more community service instead.

MR. KOEHLER:  Objection.  Relevance.

THE COURT:  Mr. Koehler, you can sit down.

MR. KOEHLER:  Your honor, this is absolutely ridiculous.

MR. RIORDAN:  No, it’s not.

THE WITNESS:  No, it’s not.

MR. KOEHLER:  It is completely irrelevant.

THE WITNESS:  What’s ridiculous is how [the petitioner] gets away with all this stuff.

THE COURT:  I really can’t properly judge the relevance until I hear a limited amount of this and disregard it if it turns out to be –

MR. KOEHLER:  Thank you.

THE COURT:  – irrelevant.  All right.  The witness can answer the question.

Reading the transcript from a hearing you have done is often a revelation.  Sometimes you come across like the brilliant trial lawyer you think you are.  Other times, when you find yourself whining, interrupting the judge or bickering with the witness, you just come across like an ass.

While the trifecta above suggests the latter, it also includes one of my favorite situations; that is, when the other side – or its witness — starts to rule on your objections.

If you plead guilty, there is a 100% chance that you will be found guilty. Or something like that. I read that on the Internet a few weeks ago and, while I can’t remember who said it for attribution, I had the opportunity to use this clever little phrase just the other day. It is what you tell a client who wants to plead guilty when you think the case should go to trial.

This was rarely a problem when I represented indigent defendants in Philadelphia. In fact, public defenders often have the opposite problem: clients with miserable cases and a good plea offer on the table who nevertheless insist on trial.

Sometimes it is a lack of sophistication: a client may have a crazy theory he is convinced is going to carry the day. For example, the police officer never read me my rights. Or the police officer got the cross-street wrong on his report. This will prove he is a liar. Or my favorite: I pled guilty every other time I was arrested. The judge or jury will be convinced I am innocent this time since I want to fight the charge.

Other times it is a lack of trust in the lawyer appointed to represent them. You work for the government and you want to see me go down on these charges. Or: It is easier for you if I just take this plea.

Occasionally, in a variation of the insufficient evidence defense, it is indignation at being charged with an offense. Yeah, I took the car or sold the drugs. But they don’t know that for sure. How will they ever be able to prove it? Besides, they don’t have any physical evidence. How can I be convicted of something based on a police officer’s simple say-so?

And sometimes – it is hard to say just how often – it is a sincere belief in actual innocence.

Given the distrust, I learned early on when dealing with indigent defendants not to lead with the recommendation of a guilty plea even when I firmly believed such a plea was in the client’s best interests. I would begin with a discussion of a plan of action for taking the case to trial. I would lay out what I believed were the strengths and weaknesses of the case. Only after we had covered all these things would I relay the government’s offer for a plea agreement, doing my best not to appear personally invested in any particular course of action.

This is simple psychology. It is also that we never really know. Trials are remarkably unpredictable. What you may believe is a strong case can go awfully wrong no matter how well-prepared you are. You can also win trials you were convinced you would lose. Witnesses fail to show up. Or they get rattled on the stand and change their testimony.

In my experience, people rarely regret having exercised their constitutional right to a trial. Even defendants who receive a harsher punishment as a result of the trial – the dreaded “trial tax” — seem to feel better about it. They have had their day in court. They have been heard. They need never suffer the “what ifs” I have heard from so many clients who took the deal. There is no grimmer face than that of someone who has just pled guilty.

If I have had problems getting indigent defendants to accept a plea offer even when I firmly believed it was the right thing to do, I have sometimes had the opposite problem with retained clients and court-appointed juveniles. Thus, my use of the “100% of people who plead guilty are found guilty” phrase from above.

Retained clients tend to take the advice of the lawyer they hired. They trust you. They believe you actually know what you are doing. But they are often more reluctant to roll the dice at trial. I don’t want to go to jail, they say. I just want to plead guilty and move on with my life. I just want to put this whole thing behind me. Note to client: Pleading guilty is not putting this whole thing behind you. Getting probation is not beating the case.

I have experimented with a tiered fee structure in which I charge one fee for negotiating a non-trial disposition, such as a diversion program or guilty plea, and then an additional fee if the case eventually goes to trial. But I am always reluctant to do this. A decision to take a case to trial should depend on: (1) the strength of the case and (2) the client’s tolerance for risk. Financial considerations – “I don’t want to pay the extra fee for trial” – shouldn’t enter into it. I often offer to waive my fee if I feel that the client is being unduly influenced by this consideration. Unfortunately for me, some clients take me up on this offer.

The decision-making in a court-appointed juvenile case represents yet another dynamic. Like retained clients, juveniles tend to trust the lawyer’s recommendation. Just tell me what I should do and I’ll do it. And like all clients, they can sometimes make decisions for the wrong reasons. Which course of action, for example, will require the fewest court appearances?

There is also a much greater incentive for a juvenile to take a case to trial. For one thing, the worst that can happen to a juvenile is that he/she is held in custody until the age of 21. More importantly, judges in juvenile cases – in D.C. at least — are much more concerned about care and rehabilitation than about any notions of retribution.

As a result, there is much less likelihood that the judge will punish a juvenile for putting the government’s case to the test. As I often tell juvenile clients, usually as a way to inspire them to fulfill all pre-trial release conditions, the judge can find you guilty of murder and still send you home with your mother that very day if the judge believes that you have your act together. Conversely, you can be found guilty of a petty offense and still spend the time until you are 21 in custody if the judge believes that is what you need. In other words, I can help you out with the legal aspects of your case but whether or not you go home after the case is over is entirely up to you. In other words, we really have nothing to lose by taking this case to trial.

I have often said that you can explain everything in life through a Seinfeld episode. And while there is no single case that does for criminal law what Seinfeld does for life, Terry v. Ohio comes pretty darn close.

It is not that Terry is my favorite case. After all, it expanded the scope of constitutionally permitted searches.  But, perhaps more than any other single case, Terry covers – through both its own language and the incorporation of holdings from other U.S. Supreme Court cases – much of what you need to know about the Fourth Amendment.  And, as one of my professors at law school once pointed out, while the Fifth and Sixth Amendment rights to confrontation, to counsel, and to a jury, yada, yada, yada, may all be important, criminal procedure begins with search and seizure.

Terry is one of those cases that, despite its significance, you may not have actually read cover-to-cover since law school.  The case is so important that you think you already know what it says.  Even when you do look at the case, you are usually searching for a particular passage to cite; for example, that very famous language on “reasonable and articulable” facts that serve as the constitutional basis for a frisk.  Or the requirement that the police officer suspect that the subject is armed AND dangerous. Or, in what is my favorite passage in the case, the opinion’s rejection of the idea that a stop is not a seizure and a frisk is not a search for Fourth Amendment purposes:  “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.  And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’”

Terry’s breadth is also derived from other, almost equally important U.S. Supreme Court opinions that are incorporated within its holding.  It cites, for example, Katz and Wong Sun, Weeks and Carroll, Mapp v. Ohio, Brinegar, and Warden v. Hayden – cases that we know from the shorthand, with each case worthy of a separate dissertation.

I have often said that you can derive as much satisfaction from reading a well-written legal opinion as from any piece of English literature. My father spent a lifetime poring over the words of John Milton, William Carlos Williams, and Emily Dickinson.  He once ferried his entire family to the Rijksmuseum in Amsterdam so that we could examine the light in the lion’s eye in Cornelis van Haarlem’s The Tree of Knowledge.  My father was convinced that Milton had been inspired by the painting while writing Paradise Lost. I can only imagine the pleasure my father would have derived from a beautifully written legal opinion – and Terry is pretty damn good — had he pursued a legal career instead.

And then, of course, speaking of great works of art, there is always Seinfeld.   I think of that episode in which George Costanza, unsure after a job interview whether or not he had actually been offered the position, decides to show up for work anyway.  He settles himself into an empty office and begins work on the “Pensky” file.  The boss – the man who interviewed him – strolls into George’s office a couple of days later and expresses surprise to see him there.  George is immediately stricken with fear that he had in fact misinterpreted the signs and is about to be thrown out as an imposter:  Surprised to see me here?  Yes, says the boss.  I thought you would have taken the corner office down the hall.