March 20 Update from Dead City Legal Posse
By Dead City Legal Posse
This is reposted from the Dead City Legal Posse:
It’s been a busy week, and several significant things have already happened—you may have already seen the two motions that were shared, about grouping cases and cell phone data. In this update we’re going to attempt to provide some context for what happened in court on Friday where those motions were presented for the first time, in addition to some updates on CJA contribution options, attorneys, the schedule, a crucial reminder that court is not a safe space: you are in the company of prosecutors, U.S. marshals, cops, and other assorted people you do not want knowing your business. When you’re in court, even in the bathroom, or the hallway, you must act and speak as though you are being surveilled, because you are.
You’ve heard this before, but we’re stressing again: none of the following is legal advice. We are not lawyers. Sorry about the length of this email: a lot happened, and information is power.
Several lawyers have requested that their clients be re-interviewed regarding their CJA contributions. In court on Friday, Leibovitz indicated that she would be accepting motions filed for defendants seeking to be re-evaluated for contribution by CJA. This is good news because it could decrease your financial contribution to your appointed counsel, and it has already proven successful in at least one case. If this is relevant to you, ask your lawyer whether they will file a motion to be re-evaluated/re-interviewed for your CJA contribution. If they are, email us so that we can give you more information.
Prior to Friday, the most significant thing we learned from the litany of court dates was about attorney qualifications. Judge Leibovitz confirmed that she has been screening all of the attorneys that she has been appointing in this case for felony experience (which is not always required of CJA panel attorneys). This is good news because it means that all appointed attorneys will be technically qualified to handle felony trials. Hopefully many of you are satisfied with your attorneys—those who aren’t should still make that fact known (along with the rationale for your dissatisfaction).
The Dead City Legal Posse is also actively seeking lawyers with extensive criminal defense experience who would be willing to take on cases pro bono. We are somewhat limited by the fact that many firms who we would contact are already on this case, but there are ways to use out-of-town counsel (who are not necessarily barred in DC). If you have connections to any criminal defense lawyers in the Northeast, Mid-Atlantic, or Chicago, please let us know. We are ready to reach out.
This next section is intended to serve as a bit of an update on recent in-court developments. None of the detail included herein is intended as legal advice, nor is it case-specific to any named defendant. The reason for this intentionally generalized update is that none of this information is veiled by attorney-client privilege. Because it isn’t private or protected, we will not risk jeopardizing any named defendant by sharing the specifics of their case. That is a choice for individuals to make in conjunction with their attorneys (and loved ones).
As many of you already know, there was a group of felony arraignments and re-arraignments on Friday, which were much the same as the many felony arraignments that have come before. People who were not previously arraigned under the superseding indictment were.
Groupings & Pleas
The most significant development was that the government prosecutor, Kerkhoff, submitted her proposed “case groupings” to Leibovitz: Group 1, Group 2, Group 3, and Group 4. Leibovitz has yet to accept Kerkhoff’s proposed groupings, which vary in size from 12 to 138. Additionally, Leibovitz instructed Kerkhoff that she wanted 6 person trials, because it would be too burdensome on the jury to hear more than 6 cases at a time. Kerkhoff was resistant to this and said she would put a response in writing about why her grouping system is important particularly regarding Groups 1 and 2. There are different options for how to respond to the grouping system that you should inquire about and discuss with your attorney.
The other significant development was that Kerkhoff and Leibovitz had their first substantive exchange about Kerkhoff’s plea offer plans. One person’s counsel acknowledged, in open court, that their client had been offered a plea, which was now under consideration. That person’s name and specifics will not be shared here, out of an abundance of caution for their case. Instead, an explanation follows of the exchange between Kerkhoff and Leibovitz.
The basics seem to be that Kerkhoff is making plea offers, at discovery conferences, to defendants in Group 3 and Group 4, which include a misdemeanor charge reduction and require an allocution (or statement of facts), but do not require cooperation (which means that these pleas include a non-cooperation clause).
What was less clear at this point were Kerkhoff’s intentions with regard to plea offers to defendants in Group 1 (and potentially Group 2). We are not sure, obviously, if this means that those plea offers with not include the misdemeanor charge reduction(s), or if they will seek to require cooperation (meaning they would not include a non-cooperation clause). This is potentially alarming news, but folks should remain calm and strategic in their thinking. Contact your attorneys to discuss your specific situation (and the degree to which this update reflects your circumstances).
Schedule for Groupings
The numbering of the groupings corresponds to the order of status hearings and trials. Although a certain set of dates were announced on Friday with regard to those groupings, the court docket does not appear to reflect that yet. The most reliable source for status hearing dates will always be your lawyer, and the notice mailed to you by the government. If and when the court dates become solidified by grouping, we will send another update.
According to Kerkhoff, discovery for Groups 1 and 2 will be available in 2 weeks. Group 3 will be ready in a week and a half. Nothing was said about Group 4. However, attorneys must contact Kerkhoff to schedule a discovery conference wherein she is supposed to be pointing to individualized evidence. If she continues to fail to provide evidence attorneys will likely continue to sustain and file pre-trial motions requesting relevant discovery such as Bill of Particulars, Rosser Letters etc.
The last two generalized developments that were significant on Friday were both related to motions. You should also check with your attorney to see if you are impacted by these motion developments. Firstly, there are a several different conflicts that have been asserted by attorneys. Kerkhoff has committed to responding in writing (by Omnibus motion) to a specific subset of these motions by the 24th (this Friday).
Secondly, the government issued a motion for a protective order regarding the collection of cell phone data. Cell phones will be used as evidence, which we anticipated. Kerkhoff has requested in her motion that attorneys be restricted to sharing only “relevant data” to clients’ cases with them. It’s important to note, though, that neither of these motions have been granted yet by Leibovitz. Kerkhoff filed them in court on Friday, but Leibovitz has yet to grant either the groupings motion or the protective order regarding cell phones.
In case you missed it, Buzzfeed wrote a surprisingly in-depth article on the case, and the Washington Post provided an update as well.
Again, this is not legal advice, nor is it privileged or specific to anyone, nor is it an admission by anyone of anything, nor is necessarily an accurate description of the case specifics being faced by any specific individual. We’re hoping to empower you through information on both what has happened and what to expect. We will be sending out another update next weekend with the results of Kerkhoff’s response to the conflicts motion, above, along with anything else that comes up.
Please also remember, as we said at the beginning, that court is not a safe space and you should speak and act as though you are under state surveillance. We’ve amped up our physical presence in court, and will have people there for every hearing this week—both before and afterwards. Look for the DC Legal Posse badges.
If you need anything, or have any questions, you can contact us as ever. And if you need housing for any upcoming court date, please try to ask a week in advance!
Love and solidarity,
The Dead City Legal Posse