<![CDATA[Westendorf & Khalaf, PLLC]]>https://www.wkdefense.com/blogRSS for NodeSun, 17 Oct 2021 13:20:41 GMT<![CDATA[Sentencing Guidelines Part 2: The Secret Of The Ooze]]>https://www.wkdefense.com/single-post/guidelineschange60968c37a3e55500152da8e9Sat, 08 May 2021 13:29:08 GMTWestendorf & Khalaf, PLLCAs we’ve discussed many times on our blog and podcast, jury sentencing sucks many butts. Thus we’re excited that effective July 1, future butts will be spared as jury sentencing goes the way of the dodo and Armie Hammer’s career. Ba Dum Tsshh. For real though, huge props to the General Assembly for taking us out of the dark ages where exercising the right to a jury trial meant worrying about a jury “recommendation” of life plus cancer if you lost. From here on out:

But this post isn’t actually about jury sentencing. It’s about a massive change to sentencing guidelines that could have a mitigating effect on defendants now requesting tons of jury trials. Effective July 1, 2021, if a judge determines at sentencing that the defendant provided substantial assistance, accepted responsibility or expressed remorse, the low end of the guidelines recommended range will be adjusted. If the calculated low end of guidelines range is three years or less, the low end of the guidelines range will be reduced to zero. If the calculated low end of the guidelines range is more than three years, the low end of the guidelines range will be reduced by 50%. The midpoint and the high end of the Sentencing Guidelines range will remain unchanged.

I hadn’t even heard of this until a few weeks ago. This is what I looked like when I read about it.

This is a sea change to sentencing guidelines. If judges accept that pleading guilty = accepting responsibility, the low end of the sentencing guidelines in the majority of felony cases is going to be zero. In the remaining more serious cases, the low end gets chopped in half. In the immortal words of Keanu, whoa.

What does this all mean for us schmucks schlepping it in the criminal courts everyday? Plea negotiations are usually based on sentencing guidelines, and a typical plea offer might go something like this:

Prosecutor: The guidelines are 1 year 6 months to 3 years 8 months. I’ll offer the 1 years 6 months if your client pleads guilty.

If the prosecutor has the goods to convict your client, that’s probably not a bad deal. But is it still a good offer when the adjusted low end of the sentencing guidelines will now be zero?

My takeaways are that:

  • Prosecutors are still going to use guidelines as the basis for plea offers, but we’re going to see way more plea agreements with caps.
  • Judges just got hella more discretion to sentence lightly without catching the wrath of the General Assembly. So who you get as your sentencing judge just got even more important.
  • Some judges are going to use this newfound discretion often. Some won't. There is going to be an increase in complaints that similarly situated defendants are getting drastically different results.

P.S. On an unrelated note, W&K wishes a happy 30th birthday to Teenage Mutant Ninja Turtles 2: The Secret Of The Ooze. Our sincerest thanks goes to the creative minds who brought us Vanilla Ice performing as himself in an epic ninja rap gang battle featuring a belching werewolf, breakdance karate, and turtles wailing on keytars. God bless America.

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<![CDATA[Say Sayonara To Jury Sentencing. You're Welcome.]]>https://www.wkdefense.com/single-post/2020/09/11/say-sayonara-to-jury-sentencing-youre-welcome5f86034770770f001755389dSat, 12 Sep 2020 02:46:30 GMTTaite Westendorf and Bassel Khalafhttps://www.youtube.com/watch?v=ZUsVoUKG3dk

If you watch the video, make sure to turn on closed captioning

If you’re a follower of the W&K blog, then you know that we’ve been pounding the drum for a long time to get rid of jury sentencing. Well, it turns out that we’ve got fans in high places because today ,the Virginia Senate voted 22-18 to give criminal defendants the right to be sentenced by a judge after jury trials. Now it goes off to the House of Delegates with a very real chance of being the new law of the land in 2021.

In the Virginian-Pilot article, Senator Joe Morrissey, the chief patron of the new law, called it “the most significant piece of criminal justice legislation in the last decade.” Now we all know that politicians are inclined to hyperbole, but I’m here to tell you that in this case, if anything, he’s underselling it. It’s a true game changer for the folks like us who live in the trenches of criminal courts.

So why is jury sentencing such a big deal you ask? We’ve broken it down before in some of our other posts ,here, ,here, and ,here. We've also covered it on our ,podcast. The simple answer is that jury sentences are way harsher and way more unpredictable than judge sentences. The numbers show that defendants who have a jury trial and lose are about 5 times more likely to be sentenced above state sentencing guidelines recommendations compared to defendants who lose after bench trials. And not only do juries sentence over guidelines, they throw down tomahawk posterizing sentencing dunks. Juries on average went over the sentencing guidelines by well over 4 freaking years.

Another little mentioned swirly turd on top of harsh jury sentences is that prosecutors in Virginia can demand jury trials themselves. And with all the leverage that harsh jury sentencing gives them, prosecutors can shut down most cases in a heartbeat by demanding a jury trial.

Prosecutors can also inexplicably transform crimes that carry no statutory mandatory minimum into mandatory sentence crimes by simply asking for jury trials. For instance, aggravated malicious wounding carries no mandatory minimum sentence. But a prosecutor can demand a jury trial, and voila like magic, the jury must recommend a minimum sentence of 20 years. Same goes for many other non-mandatory minimum crimes like possession with intent to distribute a schedule I or II, malicious wounding, and robbery which magically transform into 5 year mandatory minimum crimes when the prosecution demands a jury trial.

So Virginia’s current jury sentencing system is a shit show wrapped in a clusterfuck with a dash of clown fiesta. The result is that criminal jury trials barely exist in Virginia. Only about 1% of felony cases are resolved by jury trial. And even that number is deceptively inflated because it doesn’t count the many felony cases that are resolved by reductions to misdemeanors. The most aggressive, experienced, and seasoned criminal defense attorneys in Virginia might handle 1 or 2 jury trials a year at most. And those are the rare ones. I know plenty of defense attorneys who have never handled a jury trial. This is a truly broken system.

The Virginian-Pilot story tells you that Virginia is one of only 6 states in the country with a jury sentencing scheme. (Arkansas, Kentucky, Missouri, Oklahoma, and Texas are the others). But what it doesn’t tell you is that only Virginia and Kentucky employ a mandatory jury sentencing scheme. We are truly bringing up the rear of the criminal justice wagon train on this one. If you’re one of only two states doing something and the other one is Kentucky, you probably need to take a long hard look in the mirror because you're not going to like what you see.

This is common sense legislation that brings Virginia in line with the entire rest of the country’s state courts and federal courts. It’s an absolute no brainer. But according to the Pilot article, not everyone is sold. Senate Minority Leader Tommy Norment opposes the bill saying “I have found that juries are pretty reasonable,” and as a defense attorney, he’s “never been confronted with situation where I felt a prosecutor was attempting to intimidate or leverage my client into a jury trial.”

Woooooh weeee. Don’t miss the hilarious Tommy Norment. He will be performing at the General Assembly all week.

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<![CDATA[The Joy Of Appellate Preservation: 5 Steps To Make You A Better Lawyer]]>https://www.wkdefense.com/single-post/2020/07/31/the-joy-of-appellate-preservation-5-steps-to-make-you-a-better-lawyer5f86034770770f001755389eSat, 01 Aug 2020 02:35:50 GMTTaite Westendorf and Bassel KhalafWazzzup fellow defense attorneys. Hut One, Hut Two, Hut Three, Hut! Ol Dirty W&K live and uncut. Listen, we need to sit down and have a little talk. This is awkward. You see...we’ve been getting your appeals. And that means we’ve been reading your transcripts. And it turns out that some of you don’t know diddly poo about how to preserve issues for appeal. Right now some of you might be saying:

First off, that was a long time ago. We learned appellate preservation the hard way. It took years and many trials worth of botched appellate issues and getting raked over the coals by Court of Appeals judges. We want a better life for you. So pour a glass of your finest Four Loko and cozy up. We're going to make you a lean, mean, appellate preserving machine in 5 easy steps.

Lesson 1: When Your Client Pleads Guilty (Or No Contest), You’ve Preserved Nothing For Appeal.

You put on a killer pre-trial motion to suppress all the terrible evidence implicating your client. All the caselaw was on your side but that mean old judge slept through the whole hearing and shot you down. Now you’ve got nothing to work with for trial so you plead your client guilty and note your appeal. Oooooh boy, you can’t wait to get into the Court of Appeals (CAV) to give that judge a stone cold stunner and get a reversal. Well, here’s the response that you’re going to get from the CAV:

When your client pleads guilty, you've waived basically every possible appellate issue. Whether it’s a Miranda issue, a 4th Amendment issue, a statutory interpretation issue, a sufficiency of the evidence issue; it all gets flushed down the toilet when your client pleads out. The only way to preserve your issues is by either (A) taking the case to trial or (B) entering a conditional guilty plea. An important note on conditional guilty pleas. You need to be very specific at the conditional guilty plea hearing about what issue you’re preserving. For example, “My client is entering a conditional guilty plea preserving his right to appeal the denial of a pre-trial motion to suppress the evidence heard on October 28, 2019 before the Honorable Judge Juan Valdez."

Lesson 2: Always Do Both Motions To Strike

This is appellate preservation 101, and yet we see experienced attorneys who don’t bother doing motions to strike. Whether you’re doing a bench trial or a jury trial, you need to do motions to strike in every case. And it’s not enough to only do a motion to strike after the Commonwealth’s evidence. You need to do a renewed motion to strike if you’ve presented any defense evidence. Do you want to see what we look like when we're reading transcripts and you didn't do motions to strike?

If you don’t do the motions to strike, you have waived any challenge to the sufficiency of the evidence. It’s that simple. Closing argument alone doesn’t get the job done. If you messed up and forgot motions to strike in the heat of trial, you haven’t screwed the pooch yet. You can still preserve sufficiency of the evidence by doing a post-trial motion to set aside the verdict.

An important note on motions to strike: We get transcripts that look like this.

Commonwealth’s Attorney: The Commonwealth Rests

Defense Attorney: Your honor, I have a motion to strike.

Judge: That’s denied.

Defense Attorney: Thank you

This shit doesn’t get the job done. You need to be specific on your motion to strike. Whatever you’re arguing the evidence hasn’t proven, you need to say it. For example, “Your honor, the evidence has failed to prove malice because of X, Y, Z,” or “Your honor, the evidence failed to prove an intent to distribute because of X, Y, Z.”

Lesson 3: Dude, You Have To Object

We get transcripts that look like this:

Witness: And I talked to my friend’s uncle who said that the defendant told him that he shot the victim and also that the defendant loves to kill people and he has promised to do it again if he’s found not guilty.

Defense Attorney: Objection! Hearsay! Confrontation! Improper Character Evidence! Outrage!

Judge: [shooting daggers at defense attorney] Sit down, this witness is a-testifyin'!

Defense Attorney: [attorney shrivels into chair] I’ll withdraw it.

You have to object to preserve issues. If you don’t object and come complaining on appeal for the first time, the CAV will send you a per curium order that says:

This is called the contemporaneous objection rule. If there’s objectionable evidence, testimony, jury instructions, voir dire questions, weird stuff the judge is doing, etc, you have to (1) actually object, (2) object immediately, (3) maintain your objection. We know from experience in the courtroom that it’s not always easy. Some judges are hostile. The record won’t reflect that the judge was staring you down like he was going to rip your throat out. You have to stick to your guns, object, and state a clear reason for your objection. If the judge talks over you or tries to move you along, you have to have the presence of mind to say something like, “Your honor, I have to make a record.”

Lesson 4: If You’re Denied From Getting Evidence In, You Have To Make A Proffer

This is another situation that happens all the time. A defense attorney tries to get in testimony or an exhibit and gets shot down. It usually looks something like this in a transcript:

Defense Attorney: I call Dr. Peter Venkman, expert on eyewitness identification.

Commonwealth Attorney: I object! This testimony will invade the province of the jury as the fact finder!

Judge: This testimony is all common knowledge and invades the province of the jury. Move on counsel.

Defense: okily dokily

If you’re ever denied from presenting evidence, you absolutely have to make a proffer of what that evidence would have been. In the above example, in order to preserve the issue for appeal, the defense attorney would have to say something like,

“Your honor, if Dr. Venkman was permitted to testify, he would have said…'This ID involves cross-racial ID, weapons focus, unconscious transference, that witness certainty is meaningless, etc.”

You need to be specific in your proffer. The CAV is just itching to say they can’t rule on your issue because they don’t know what the testimony would have been.

If you’re denied from getting a tangible piece of evidence admitted like a photo, map, transcript, etc, then you need to ask for the exhibit to be admitted into the record as a denied/refused exhibit. This also goes for denied jury instructions. This is a scenario we’ve seen:

Judge: I’ve read the proposed jury instructions. I’m going to reject this instruction proffered by the defense.

Defense Attorney: Judge, it’s a really important instruction.

Judge: Your exception is noted.

On appeal, nobody has any freaking clue what instruction was denied. Your best practice is to (1) read the denied instruction into the record, (2) state why it’s necessary, (3) admit the denied instruction into evidence.

Lesson 5: If The Commonwealth Is Being Shady, You Need To Ask For A Mistrial

A scenario that comes up is when a prosecutor says a bunch of objectionable stuff usually in a closing.

Commonwealth Attorney: Ladies and gentlemen, this man here is a guilty dirty dog [points finger at defendant]. I know he’s guilty because I’ve been doing this for a long time and I know a criminal when I see one. And he hasn’t even taken the stand or presented evidence to defend himself. Does that sound like an innocent man to you?

Defense Attorney: Objection! This is improper argument!

Judge: It’s closing. I’ll allow it.

You might think that objecting to improper statements in an opening statement or closing argument is enough to preserve it for appeal. You would be wrong. You need to object AND ask for a mistrial (or cautionary instruction.) This can be a really tough one because many judges hate objections during closing arguments. But that’s why they pay you the big bucks.

Conclusion

The most fundamental thing that you can do to get better at preserving issues for appeal is to always be asking yourself the question, "What is the record going to look like for somebody looking at it for the first time who wasn't in the courtroom?" Things that seem obvious in the courtroom don't always come across in transcripts. If you have a trial coming up and you're worried about preserving an appellate issue, feel free to give us a call. We probably messed it up at some point and can steer you in the right direction.

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<![CDATA[Does It Serve The Public Interest To Prosecute Those Protesting Confederate Monuments?]]>https://www.wkdefense.com/single-post/2020/06/16/does-it-serve-the-public-interest-to-prosecute-those-protesting-confederate-monuments5f86034770770f001755389fTue, 16 Jun 2020 15:20:48 GMTTaite Westendorf and Bassel Khalaf

In my ,last blog post, I slammed a local attorney for playing fast and loose with facts and advocating the prosecution of public defenders who spray painted a confederate monument. Since that post, I’ve had a couple of attorneys reach out to me in good faith who thought that I was too flippant in dismissing criticism of the spray painting as “pearl clutching.”

I’m happy to engage with people who want to have an intellectually honest discussion so I felt compelled to follow up. It’s true that people cannot feel free to simply disregard laws because they feel that something is unfair or wrong. While I personally feel that confederate symbols in our cities are deeply offensive, it does not logically flow that anything goes when it comes to destroying them. So it’s perfectly fair to have a conversation based on facts about whether the public defenders should be prosecuted for spray painting them.

So I’ll start the conversation by placing myself in the position of a prosecutor deciding on a course of action. The first thing we need to do is agree on the facts of what occurred. The evidence appears to show multiple identifiable public defenders among a large crowd actively engaged in spray painting “BLM” on confederate monuments at 2:00 in the afternoon. There are multiple law enforcement officers present who make no effort to intervene. Have the public defenders committed a crime that should be prosecuted?

We’ve written previously about ,prosecutorial discretion. Commonwealth Attorneys as elected officials have wide latitude to pick and choose what they want to prosecute. For the sake of this thought exercise, I’ll place myself in the position of a prosecutor who is deeply disturbed by the public defenders' behavior and is actively seeking justification to charge them.

My first concern as the prosecutor would be that the defense will argue that the police were tacitly blessing the spray painting by not intervening. The destruction of property law ,18.2-137(B) requires proving an intentional destruction of property. You can’t destroy property with a criminal intent if you reasonably believe that you had permission to destroy it. For instance, if I give a kid a rock and tell him that he has permission to wing it through my window, I can’t complain when he does. Of course, as the prosecutor, I would be arguing that police and/or politicians don’t have legal authority to grant permission to deface property. They’re not the owners. Moreover, there is no evidence that anybody explicitly gave the public defenders permission to deface the monuments.

My second concern as the prosecutor would be whether I could prove that the public defenders committed an intentional destruction of property versus an unlawful destruction of property. An unlawful destruction of property under ,18.2-137(A) is only a class 3 misdemeanor punishable by no jail time and a $500 fine. An intentional destruction of property under ,18.2-137(B) is a class 1 misdemeanor punishable by up to 12 months in jail. So what's the difference between unlawful and intentional destruction? As a prosecutor, I would have to be aware that the line between the two is extremely blurry. ,The Court of Appeals has held that unlawful destruction applies to criminally negligent conduct while intentional destruction has a higher level of mens rea. If the case went to a jury, a competent defense attorney would likely get a lesser included jury instruction on unlawful destruction and muddy the waters.

My third and largest concern as the prosecutor would be that it would be extremely difficult to obtain a conviction. In order to get a conviction from a jury, I would need to unanimously convince 7 jurors in a misdemeanor trial that the evidence proved beyond a reasonable doubt that the public defenders committed a criminal act. Jurors aren't robots. It is highly likely that the jury pool would include many people intensely sympathetic to the cause of protesting confederate monuments. And that’s not even taking into account that there would be legitimate problems proving criminal intent even in front of a prosecution friendly jury.

Yet another factor to weigh is that even if I overcame all hurdles and managed to convince a jury to find the public defenders guilty beyond a reasonable doubt, there is a good chance that the charge would ultimately be dismissed anyway. Unlawful destruction of property allows dismissal with payment of restitution. Misdemeanor intentional destruction of property can be dismissed on terms pursuant to ,19.2-303.2. As a responsible steward of taxpayer money and my office’s resources, I would have the responsibility to ask whether the investment of manpower required to prosecute would be worth it.

So as a prosecutor, this is the summary of what I’m looking at:

  1. Legitimate legal questions regarding whether I can prove mens rea
  2. Multiple trials and a large investment of office manpower and resources
  3. Defendants engaged in a cause that many view as righteous
  4. Uphill path to convincing a jury to return a guilty verdict
  5. Strong possibility of ultimate dismissal even if I overcome the odds
  6. Almost certainty that prosecution will be highly controversial and serve to rip open festering racial wounds in the city
  7. Defendants with no prior record who have devoted their careers to providing legal assistance to the poor

Even as a prosecutor aggressively looking for a reason to prosecute, I could not responsibly go forward with charges in that scenario. To do so would be self indulgent political theater that would detract from my office’s legitimate mission of prosecuting serious crime and protecting the citizens of the city. ​Also to make clear, I'm not that hypothetical aggressive prosecutor. My personal view is that what the PDs did was a safe and appropriate way of expressing solidarity with the community they serve. We become defined by the battles we pick. Something tells me that picking a fight against people of good conscience protesting morally abhorrent confederate monuments is not going to place you on the right side of history.

That’s my useless two cents. I’m obviously not elected by anybody, and I don’t even live in Portsmouth. Anybody is absolutely entitled to disagree with me. But let’s strive to have a conversation that is factually and intellectually honest. And reject those who seek to gain political advantage through dishonesty and demagoguery.

For More Information, ,Please Visit Our Website

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<![CDATA[Local Lawyer Spouts Fake News About Portsmouth Protests]]>https://www.wkdefense.com/single-post/2020/06/12/local-lawyer-spouts-fake-news-about-portsmouth-protests5f86034770770f00175538a0Fri, 12 Jun 2020 13:52:50 GMTTaite Westendorf

I’m a social media luddite. I’ve never had a personal FaceBook or Instagram account. I reluctantly dipped my toe in social media waters only 2.5 years ago in order to advertise my new business. I quickly learned that social media is rife with bad actors who distort facts and manipulate public opinion to further their own agenda. Disturbingly, I also learned that this is the way that a considerable portion of the population consumes the majority of their news.

Last night, I was sent a video posted by local attorney and aspiring muckraking journalist Tim Anderson regarding protests in Portsmouth. In the video, Anderson identified three public defenders in Portsmouth by name and excoriated them for spray painting a confederate monument. He called for the lawyers to be criminally prosecuted for vandalism and asserted that state senator Louise Lucas had “incited a riot” by ordering police to stand down to a crazed mob. Anderson further claimed that he had high level information that a protestor named Chris Green struck by a falling statue during the protest had died from his injuries.

Within hours, the video had been viewed over 60,000 times with over 1,500 outraged comments. Many called for the state senator to be charged as an accessory to murder. Many called for the lawyers to be disbarred. A number of sociopaths celebrated that Green had gotten what he deserved. Well, imagine my surprise when it turned out that Chris Green is alive and in stable condition. Anderson’s shocking scoop was instead utter bullshit offered under the tempting guise of insider knowledge. And one thing I’ve learned from years in court is that once a witness or lawyer has lied to you once, there’s probably another pile of steaming dung right around the corner.

Lo and behold, the crap cornucopia was only beginning. Anderson’s claim that the public defenders were lawless criminals was also pulled straight from his nether regions. The reality is that several public defenders attended a large community protest in broad daylight at 2:00 in the afternoon. White and black community members gathered together to express their disgust at the presence of a racist confederate statue sitting at a site where slaves were once punished on a whipping post. With the apparent blessing of law enforcement and local politicians who were on-site, the public defenders participated with hundreds of others in (clutch your pearls) spray painting “BLM” for black lives matter on statutes as an expression of community solidarity. Criminals? Not so much. Standing up for the oppressed? That’s what public defenders do every day.

Should questions be asked about why authorities stood by and allowed amateurs to pull down statutes weighing thousands of pounds? Yes, it obviously wasn't safe. Unlike Tim Anderson, I won't pretend to know the facts and won't assign blame until an investigation has been done. As it turns out, ownership of a cell phone camera doesn't turn someone with no journalistic experience into the next Woodward or Bernstein. When facts are complex, good journalists provide reliable factual background information, “context,” to enable readers to draw their own conclusions. In this case, 60,000 people got the personal interpretations of a lawyer making shit up because he has a beef with a state senator.

But the family of Chris Green and the public defenders whose good names and reputation were dragged through the mud deserve an apology. To somebody like Tim Anderson, they're a means to a political end. Well guess what numb nuts? They're real people with real families getting hate messages from your followers. So while you're having fun playing amateur investigative journalist, your bullshit has real life consequences for them. Unlike you, they actually live in Portsmouth and serve their city with honor doing the thankless work of fighting for the poor. They don’t concern themselves with playing dress up journalist, FaceBook likes, or political kabuki theater. For their efforts, they’re rewarded with baseless attacks from a clown outsider with a political score to settle. Shame on you.

For More Information, ,Please Visit Our Website

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<![CDATA[W&K Defense LIVE ON 94.9 The Point]]>https://www.wkdefense.com/single-post/2020/06/09/wk-defense-live-on-949-the-point5f86034770770f00175538a1Tue, 09 Jun 2020 13:56:18 GMTBassel Khalaf and Taite WestendorfCheck out our recent interview on Mike & Woo Woo in the morning on 94.9 The Point.

https://www.facebook.com/watch/?v=688536371692266

We discuss:

  • What to do if you're protesting and stopped by police.
  • Some of the more common crimes charged as a result of the protests.
  • Why the justice system is imbalanced and what can be done to fix it. Specifically, we propose pay parity between prosecutors and public defenders.
  • The implications of courts endorsing police searches in "high crime neighborhoods."

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<![CDATA[Support Justice Equality: EQUAL PAY FOR PUBLIC DEFENDERS NOW!]]>https://www.wkdefense.com/single-post/2020/06/01/support-justice-equality-equal-pay-for-public-defenders-now-15f86034770770f00175538a2Mon, 01 Jun 2020 16:25:36 GMTBassel Khalaf and Taite Westendorf

The most commonly asked question in the aftermath of the George Floyd murder appears to be: What can I do to help? As a private criminal defense attorney and former public defender, my answer is: DEMAND EQUAL PAY FOR PUBLIC DEFENDERS.

The majority of public defender clients are black and minority defendants desperate for proper legal representation. One of the biggest problems with the public defender system is that it’s underfunded and PDs are severely underpaid. Prosecutor offices, on the other hand, always seem to be adequately funded and their attorneys properly compensated.

My hometown of Virginia Beach provides a perfect illustration of this pay disparity. An entry-level PD is paid somewhere around $52,000. An entry-level prosecutor is paid over $70,000. The city of VB financially supplements prosecuting attorneys but not public defender attorneys.

Now ask yourself the following: Which position is more valued by the system? Why do we allow a system that blatantly and disproportionately favors one side of the scale of justice over the other? Finally, who is to blame and what can I do to fix this problem?

The answers I have are as follows:

  1. Educate yourself and others on the issue;
  2. Organize a peaceful protest at your local courthouse;
  3. Attend city/town council meetings and demand to be heard on the issue of financially supplementing your locality’s public defender office; and
  4. Demand that elected officials – including prosecutors – support pay equality.

Rapper/activist Killer Mike from Atlanta gave one of the most moving and inspiring speeches in the immediate aftermath of the Floyd tragedy. Holding back anger through tears, he stated, “Now is the time to plot, plan, strategize, organize, and mobilize to beat up the prosecutors you don’t like at the voting booth.” That statement beautifully captures the dimension of calmness and coordination required in a time of inflamed passion.

VOTE on the issues that matter. DO something. SUPPORT equal pay for public defenders.

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<![CDATA[Support Justice Equality: EQUAL PAY FOR PUBLIC DEFENDERS NOW!]]>https://www.wkdefense.com/single-post/2020/06/01/support-justice-equality-equal-pay-for-public-defenders-now5f86034770770f00175538a3Mon, 01 Jun 2020 16:15:00 GMTBassel Khalaf and Taite Westendorf

Our country is on fire after yet another unarmed black man, George Floyd, was killed by a police officer who kneeled on his neck until he was dead. Protesters have come to streets all over America, rightly furious, over this latest sordid chapter in the sadly recurring history of police brutality on minority communities.

We’re well aware that policing and the criminal justice system as a whole disproportionately touches the lives of black Americans. In our hometown of Virginia Beach, ,49% of those charged with disorderly conduct and ,57% charged with possession of marijuana are black despite being less than 20% of the city’s population.

If we’re going to make positive changes to how black communities are being treated, it requires that we all reflect on how we can individually contribute to break the current cycle. As criminal defense attorneys, we’re in the courtrooms almost every day and have seen how the courts subtly -- and sometimes not so subtly -- condone police conduct that targets minority communities.

,We wrote previously about the case Hill v. Commonwealth in which police yanked a black man named Patrick Hill from his vehicle in broad daylight at 2:30 P.M. when he had done nothing illegal. ,The Supreme Court of Virginia recently gave their seal of approval ruling that the officers reasonably feared personal harm because they were in a “high crime” neighborhood and Hill was reaching down between the seats and could have been going for a weapon.

It’s not hard to see how cases like this one have a disproportionate impact on black communities. “High crime neighborhood” is often nothing more than a transparent code for black neighborhood. Subjective police fear is often nothing more than unfounded fear of “scary black men.” Trial courts and appellate courts need to do a better job of calling bullshit on this type of testimony.

Can you imagine the outrage if the police yanked a white Supreme Court judge from his car in broad daylight because he was reaching between his seats? Would we blindly accept an officer’s claim that he feared for his safety? Of course not. The fact that courts often accept that explanation when the case involves black men is nothing more than court sanctioned endorsement of the idea that black men are scary and thus less entitled to the protections of the law.

Let’s identify this for what it is and permanently cast it from our courtrooms. Testimony regarding “high crime” aka black neighborhoods needs to become a thing of the past. Testimony concerning officer safety needs to be tied to specific observations of criminal activity and not some vague notion of the defendant looking “nervous” or “reaching for an unknown item” that somehow never materializes.

So what can you do to help ensure that black and minority Americans get the legal representation that they desperately need and deserve? Considering the majority of black and minority defendants are represented by court-appointed attorneys, one step in the right direction is to DEMAND EQUAL PAY FOR PUBLIC DEFENDERS.

One of the biggest problems with the public defender system is that it’s underfunded and ,PDs are severely underpaid and under-resourced. Virginia Beach provides a perfect illustration of this pay disparity. An entry-level PD is paid somewhere around $52,000. An entry-level prosecutor is paid over $70,000. The city of VB financially supplements prosecuting attorneys but not public defender attorneys.

Now ask yourself the following: Which position is more valued by the system? Why do we allow a system that blatantly and disproportionately favors one side of the scale of justice over the other? Finally, who is to blame and what can you do to fix this problem?

The answers we've come up with are as follows:

  1. Educate yourself and others on the issue;
  2. Organize a peaceful protest at your local courthouse;
  3. Attend city/town council meetings and demand to be heard on the issue of financially supplementing your locality’s public defender office; and
  4. Demand that elected officials – including prosecutors – support pay equality.

Rapper/activist Killer Mike from Atlanta gave one of the most moving and inspiring ,speeches in the immediate aftermath of George Floyd's murder. Holding back anger through tears, he stated, “Now is the time to plot, plan, strategize, organize, and mobilize to beat up the prosecutors you don’t like at the voting booth.” That statement beautifully captures the dimension of calmness and coordination required in a time of inflamed passion.

VOTE on the issues that matter. DO something. SUPPORT equal pay for public defenders.

For More Information, ,Please Visit Our Website

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<![CDATA[Governor Northam's Not The Boss of Me!! (Or Is He?) -- A Guide to the "Masks in Public"]]>https://www.wkdefense.com/single-post/2020/05/31/governor-northams-not-the-boss-of-me-or-is-he-a-guide-to-the-masks-in-public-order5f86034770770f00175538a4Sun, 31 May 2020 20:08:03 GMTBassel Khalaf and Taite Westendorf

A lot of people are wondering about the legality of Gov. Northam’s executive order requiring face coverings in public places that took effect on May 29, 2020.

This post is not intended to stir the political pot. We just want to give you the straight facts.

What authority does he have to issue the order?

Gov. Northam has invoked his authority under:

(1) Va. Code Section 44-146.17; and

(2) Article V of the Constitution of Virginia.

  • Va. Code § 44-146.17 says he can take action on things “relating to the safety and welfare of the Commonwealth in time of disasters.” These powers are fairly broad. Using "his judgment", he can make relevant rules and regulations about the use, sale, production, and distribution of food, fuel, clothing and other goods and services. He can direct or compel evacuation when necessary for preservation of life. Also, there’s a provision that addresses “exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area of the Commonwealth.”

  • Article V of the Constitution of Virginia explains what a “governor” is and that he’s the leader of the executive branch. That makes him one-third of the state government. Under the law, he actually has a lot of authority in the matter.

What are the penalties for noncompliance?

If you’re an adult and you’re busted without your mask, you could be charged with a class 1 misdemeanor punishable by up to 12 months in jail and a $2,500 fine. The order says minors won’t be criminally charged for violating the order.

Is the order constitutional?

That’s more complicated than some on both sides of the issue would have you believe. At this moment, mandatory face coverings are the law of the land whether you like it or not. The only way the order can be declared unconstitutional is if a court declares it unconstitutional. There’s always a chance that could happen. However, you can’t willy-nilly say you think it’s unconstitutional and have it be so. If you want to challenge the order, you have to take it to court. Separation of powers and the principle of judicial review vests decisions whether a law is constitutional in the judicial branch of the government.

Who does the order apply to?

It applies to anyone over 10 years old. Adults are being asked to use “best judgment” for children between 2 and 9. There are some exceptions. For instance, you can remove your mask while eating and drinking, or while participating in a religious ritual. The order says you also need one in Uber/Taxi-type situations. Oddly, you can go to the gym, take your mask off and hyperventilate on the equipment to your heart’s content.

Look, I share the annoyance with face masks. I have to wear one in court. They’re uncomfortable. They’re depressing. But politics aside, straying outside the legal apparatus on this one brings you more into anarchist territory than it does patriot territory. There is a place for civil disobedience, but we’re talking face masks during a pandemic, not segregation. However, our firm will be more than happy to defend you if you do get charged for not wearing a mask. While I’m personally fine with the order, I genuinely feel there are some good-faith legal arguments that could be made against it (i.e., as of right now are we actually in a “time of disaster”? Is this really an “emergency” as contemplated in the code?).

For more detailed information, read the official order itself and the Commonwealth's official frequently asked questions page. For more information about our firm, visit our website.

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<![CDATA[Attorney Khalaf "Honored And Humbled" To Be Selected As Super Lawyer. Promptly Seizes Cont]]>https://www.wkdefense.com/single-post/2020/05/21/attorney-khalaf-honored-and-humbled-to-be-selected-as-super-lawyer-promptly-seizes-contro5f86034770770f00175538a5Fri, 22 May 2020 03:25:42 GMTTaite Westendorf

Virginia Beach, VA – After receiving awards proclaiming him a "Super Lawyer," "CoVa Biz 2020 Top Lawyer," and "Top 40 Under 40," local attorney Bassel Khalaf has declared himself "Supreme Lawyer King Extreme Deluxe" and announced the reopening of the courts as the first day of a new calendar year called "Year 37 After Birth Of Khalaf."

"The lawyer awards have spoken," Khalaf said. "By recognizing me as the king of kings among attorneys, I have no choice but to humbly assume the wheel of the criminal justice system and steer us all to a glorious future." Dressed in full regalia displaying his lawyer awards and flanked by members of his elite Super Lawyer Guard, Khalaf told his subjects, "Let all the peoples of my lands know this: The age of tyranny, corruption, and ignorance in our court system is over. The great cleansing fire is upon us."

While most local attorneys have already sworn loyalty to the new Khalaf regime, some have expressed reservations. "I mean these lawyers awards are silly. These are for-profit companies that have never seen any lawyers in court. They're tacky and highly deceptive," said local public defender Michael Castillon. Shortly thereafter, a burlap bag was thrown over his head and he was sent to "re-education camp." To squelch any further rebellion, Khalaf ordered the leaders of the local bar association to be publicly fed to his pet tigers and their heads displayed on iron pikes in front of the Virginia Beach courthouse.

Despite these early signs of repressive behavior, Khalaf promised a new and prosperous era stating, "While I have been reluctantly forced to take absolute power, I do so only in the interest of all lawyers without awards who are too simple to be trusted to fend for themselves. Rest assured that I am but a benevolent father protecting my flock. Together we shall heal our great legal system, and the blood of any infidel attorneys will run like a raging river through the streets. Now how about a Denver omelette at Egg Bistro?"

For More Information About Our Many Prestigious Awards, ,Please Visit Our Website

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<![CDATA[Westendorf & Khalaf Announces Hiring Of New Associate.]]>https://www.wkdefense.com/single-post/2020/05/15/westendorf-khalaf-announces-hiring-of-new-associate5f860348b9da6700170e2530Sat, 16 May 2020 02:58:08 GMTTaite Westendorf and Bassel Khalaf

Westendorf & Khalaf, PLLC is pleased to announce the addition of Jabba the Hut as a new associate attorney. In this position, Jabba will be involved in assisting the firm’s growing areas of defense practice, including cases involving human enslavement, spice trafficking, gambling, illegal pod racing, and Jawa property disputes. Jabba received his Juris Doctor from Regent Law School and recently passed the Virginia Bar Exam. Jabba was born and raised on Tatooine and was a member of the Grand Hutt Council prior to practicing law. He was feared dead after an incident on his sail barge at the Great Pit of Carkoon. Taite Westendorf, one of the partners of Westendorf & Khalaf, said, “We are thrilled to have Jabba as part of our team. He is an extremely shrewd and hard-nosed negotiator. We have made a commitment to adding lawyers from diverse backgrounds to meet the demands of our growing practice and the needs of our clients. Hiring Jabba helps us continue to provide the exceptional legal services that our clients have come to demand and expect.”

For More Information About Our Firm, ,Please Visit Our Website

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<![CDATA[Ahmaud Arbery's Killers Were Arrested After Their Attorney Leaked A Video. Is That Okay?]]>https://www.wkdefense.com/single-post/2020/05/14/ahmaud-arberys-killers-were-arrested-after-their-attorney-leaked-a-video-is-that-okay5f860348b9da6700170e2531Fri, 15 May 2020 03:07:41 GMTTaite Westendorf and Bassel Khalaf

Even in our current era of intense polarization, the video of Ahmuad Arbery being pursued, shot, and killed by father and son Gregory and Travis McMichael united most of the country over the past week. Donald Trump called the footage “very, very disturbing” while Joe Biden described Arbery as “being lynched before our very eyes.” Although Arbery was killed all the way back in February, it was only after the video went viral that the McMichaels were arrested following widespread outrage.

In a bizarre twist to the story, the New York Times reported that the person who leaked the video to the media “turned out to be a criminal defense lawyer in town who had informally consulted with the suspects.” The lawyer, Alan Tucker, explained that his reason for leaking the video was to dispel rumors that had caused tension in the community. He added that releasing the video “got the truth out there.” “My purpose was not to exonerate them or convict them.” In an interview published today on law.com, he responded to criticism of his involvement stating, “If we tell the truth, we get justice. It’s why we take an oath to tell the truth, the whole truth and nothing but the truth.”

Before I dive into Tucker’s involvement, let me state the obvious. Based on what the video shows, the McMichaels absolutely should be charged with murder and whoever represents them will have their work cut out for them. No reasonable person has any pity for their current situation. This post is not about justice. The just thing was for the McMichaels to be arrested and to ultimately face trial.

The reason that I’m writing this post is because as a criminal defense attorney, I am shocked by Tucker’s involvement and his attempts to justify his actions. According to the law.com article, Tucker has been a practicing lawyer for almost four decades. Surely, he knows about attorney-client confidentiality. Hell, any first year law student, and probably most lay people, are familiar with the concept of attorney-client confidentiality. The basic idea is that lawyers can’t share what they’ve discussed with clients or prospective clients without their permission. While the Times article described an “informal” consult, whatever that means, there is no difference when it comes to confidentiality. Any conversation with a prospective client, no matter how “informal,” is covered by confidentiality.

The reason for attorney-client confidentiality is straight-forward. Defense attorneys are supposed to defend people, not throw them under the bus. It’s not possible to have a functioning adversarial system if people charged with crimes have to worry that their defense attorneys might turn on them at any moment in order to “get the truth out there.” For some people, this might be a difficult concept but a defense attorney’s role is not to “seek justice” or to “to tell the truth, the whole truth, and nothing but the truth.” Our role is to defend our clients. Tucker did exactly the opposite of serving his clients. No amount of spin on his part makes stabbing his clients in the back honorable. It doesn’t matter if they didn’t ultimately hire him. It doesn’t matter if the police already had the video. He had a duty of loyalty and confidentiality to them from the moment they had contact with him.

This situation is sure to inspire future law school ethics exam questions because it presents a classic situation where our ethics as a human being may collide with our ethics as a lawyer. If Alan Tucker were a regular citizen who leaked the video, I would view his actions as heroic. But for the leaked video, it seems possible, if not likely, that the entire incident was being swept under the rug. That would have been disgusting. But Alan Tucker was not a regular citizen. He was a lawyer who was duty bound to protect his clients whether they ended up hiring him or not.

Alan Tucker might be a nice guy. He probably considers what he did to be morally righteous. But what he did should result in him being disbarred. His actions led to his clients being arrested for murder which is inexcusable. I’m glad that Ahmaud Arbery’s killers have been arrested. I am also disturbed that an attorney brazenly violated his oath. Both things can be true.

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<![CDATA[We're All Judges Now. Welcome To #MeToo Court.]]>https://www.wkdefense.com/single-post/2020/05/10/were-all-judges-now-welcome-to-metoo-court5f860348b9da6700170e2532Sun, 10 May 2020 23:03:50 GMTTaite Westendorf and Bassel Khalaf

In October 2017, actress Alyssa Milano unleashed a cultural tsunami when she tweeted an invitation for women across the world to share their stories of sexual harassment and assault. Tens of millions of tweets later, the #MeToo movement has had an impact at all levels of society, and signaled a huge shift in the past attitudes surrounding sexual assault and responsibility.

To say that the impact of #MeToo has been complicated would be an understatement. In some high profile cases such as Harvey Weinstein and Bill Cosby, accusations were vetted in the criminal justice system. There was discovery, testimony from the accused, cross-examination, and defense evidence that resulted in findings of guilt beyond a reasonable doubt. But those situations have been the exception. Most high profile accusations are instead being litigated in the quasi-court of public opinion. Now Joe Biden finds himself taking his turn after a former staffer accused him of sexually assaulting her 27 years ago. Editorials published in the New York Times and Washington Post among others have argued that Democrats should already be planning to kick Biden to the curb as their nominee. One can only hope that Biden's team crafts a better way to navigate this crisis than Brett Kavanaugh's approach.

We know that historically women have been blamed for many sex crimes committed against them. We share in the belief that bullshit like “she shouldn’t have been there at that time of night” or “why was she dressed like that” should be permanently cast into the garbage heap of outdated ideas. But, (here comes the but)... While the #MeToo movement should be commended for raising awareness of the prevalence of sexual assault, there is a very legitimate concern that innocent people are getting steamrolled in the process.

Some of you may be saying to yourselves “But due process rights don’t apply in the court of public opinion.” Some of you might argue that, for hundreds of years, women were shamed for rape while male aggressors paid no price. The #MeToo movement is simply a necessary correction to a skewed power dynamic that has favored men over their victims for hundreds of years. Some of you might even be onboard with #BelieveWomen and say that allegations of sexual harassment or sexual assault should always be taken at face value.

As criminal defense attorneys who have represented people thrown in jail on false accusations of sexual assault, we find that approach to be terrifying. Nobody is entitled to being believed and gender has nothing to do with credibility. We’ve seen clients who were locked in cages and had their lives destroyed based on stories that dissolved into wet mush once exposed to the slightest scrutiny. The simple fact is that accusers should be entitled to an opportunity to be heard and taken seriously. Nothing more and nothing less.

It’s true that as a legal matter, due process rights are only triggered when the government is involved. So yes, persecution/prosecution by social media mob is a different animal. But just because there are no rules in the court of public opinion doesn’t mean that we shouldn’t honor basic principles such as the presumption of innocence, a thorough evaluation of credibility, and a demand for evidence. Destroying an innocent person's reputation isn’t as bad as putting them in jail, but it’s still awful. Sometimes, rumors are worse than a trial, because no one ever knows for sure. A good witch hunt ensures that a person accused of the crime will pay a high price regardless of the outcome. Once the accusation is made, the damage is done.

It's hard enough for trained professional lawyers to try sexual assault cases in courts of law. So how do we even begin to form a functioning #Metoo Public Opinion Court? The true story of any alleged sexual assault accusation is often difficult to untangle. There’s what she said, what he said, what everyone else there said, each person’s mental stability, and sometimes years and even decades between the event and the accusation.

We have a choice to make as a society. Do we blindly believe accusers because it’s the super-woke thing to do at the moment or do we honor principles developed over hundreds of years to protect innocent people from being destroyed by mere accusation. #MeToo exposed pervasive abuses of power and gave many victims the courage to come forward. That’s a great thing. But an accusation doesn’t equal guilt and not all accusers are equally credible. Unfortunately many people don’t find an appreciation for due process until they find themselves or someone they support on the wrong side of the finger of accusation.

Blind belief in strangers is a recipe for disaster. It’s on us as a society to find a better path forward. It's certainly not easy, but we must strive to create a climate of respect and accountability where anyone with a legitimate claim can feel free to come forward; where mob rule has no place; and where due process principles are honored.

For More Information, ,Please Visit Our Website

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<![CDATA[Need A Bond? Call W&K!]]>https://www.wkdefense.com/single-post/2020/04/01/need-a-bond-call-wk5f860348b9da6700170e2533Wed, 01 Apr 2020 14:52:14 GMTTaite Westendorf and Bassel Khalaf

With yesterday's announcement of a stay at home order, it doesn't appear that courts will be fully open for business anytime soon. Other than bond hearings and arraignments, the plows of the courthouse have gone silent and the fields of justice lay fallow. But W&K remains hard at work. Every morning we throw our legal briefs into the back of our F-150s and head out to get results for our clients. This morning that meant getting bonds for two clients who had already been previously denied bond. We’re thrilled that we were able to help reunite them with their families.

Our approach to appeal bond hearings is inspired by the should-have-won-an-Oscar masterpiece Lone Wolf McQuade. In the most famous scene, the titular hero played by Chuck Norris is captured and savagely beaten by the villain, an arms dealer and Kung-Fu expert portrayed by David Carradine. The villain places our severely weakened and semi-conscious hero into a Dodge Ramcharger and orders henchman to bury Lone Wolf alive. While this appeared to be an ignominious end for Lone Wolf, the villain failed to account for one variable. Running out of oxygen and on the verge of death, Lone Wolf discovers a can of beer in the truck. He pops the golden beverage and pours it all over his head, face, and down his throat. Miraculously revived by the barley, hops, and water, Lone Wolf throws his '83 Ramcharger into drive and pushes pedal to the metal. The vehicle, apparently achieving momentary sentience, becomes inspired by Lone Wolf’s passion and erupts from the dirty tomb. He then proceeds to lay waste to the remaining bad guys.

https://www.youtube.com/watch?v=EQkyi1_l6po

At this point you may be wondering what the hell does this have to do with bond hearings. It’s very simple. If you’ve been arrested and denied bond, you likely feel like Lone Wolf McQuade: alone, beaten, and buried. But you still have hope. As Lone Wolf found salvation in a can of beer, you can find yours by calling W&K. We look forward to serving you like a supercharged ‘83 Ramcharger and ramming you straight out of jail!

For More Information, Please Visit Our Website

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<![CDATA[6 Ways To Improve The Criminal Justice System In 2021]]>https://www.wkdefense.com/single-post/2020/03/14/6-ways-to-improve-the-criminal-justice-system-in-20215f860348b9da6700170e2534Sat, 14 Mar 2020 20:33:15 GMTTaite Westendorf and Bassel Khalaf

At W&K, we always strive to be fashionable. To that end, we've just returned from the runways of NYC and you will soon be seeing us in court rocking the latest cutting edge of men's suits.

Other than inflatable pants, nothing is more fashionable right now than criminal justice reform. Effective July 1, 2020:

Possession of up to an ounce of that demonic weed is decriminalized. Well alright, alright, alright.

No more driver's license suspensions for unpaid court costs and fines. F the man!

Felony larceny threshold doubled from $500 to $1000. Take that Target!

For real, these are all common sense steps in the right direction. But now it’s time for legislators to swing for the fences in 2021. We have it on good authority that many members of the Virginia General Assembly are big fans of the W&K blog so we’re here to help them out. Here are 6 officially endorsed W&K changes to the law that can improve the criminal justice system in 2021.

1. Jury Sentencing Gets The Ax

We’ve written extensively on the absurdity of jury sentencing here and here. In Virginia, our system after a jury trial is to send 12 amateurs into a room without sentencing guidelines and have them blindly flail. It’s like handing a scalpel to a child and letting them waltz into the operating room. What could go wrong, amirite?

It's a deeply stupid system that produces insane results. The stats show that Virginia defendants who had a jury trial and lost were about 5 times more likely to receive a super harsh sentence. The very simple solution is to get rid of jury sentencing like almost every other state. We support the proposed new law by Senator Joe Morrissey that would eliminate jury sentencing unless the defendant requests it.

2. Allow More Options For Deferred Findings

This is another subject that we’ve written on extensively. The idea is to allow certain people (typically people with no criminal record) to avoid convictions by doing things like completing treatment, doing community service, and paying restitution. The problem is that those meddling Court of Appeals judges keep getting in the way by publishing opinions saying that deferred findings aren't a thing.

One proposed new law would give courts way more latitude to fashion deferred findings. W&K approves!

3. Get Rid Of Mandatory Minimums

Imagine if this is how we handled sentencing hearings: The judge was told nothing about the facts of the case. The judge was told nothing about the background or record of the defendant. Instead, the judge is only told what the defendant has been charged with and instructed to impose a specific sentence. Pretty asinine, right? The General Assembly needs to take the cuffs off our poor judges.

Mandatory minimum sentences have always been nothing more than a cheap political stunt, and a giant transfer of power from judges to prosecutors. There is not a shred of evidence to support that they're effective. It’s not rocket science folks. Let judges hear the facts of the case and the background of the defendant so that they can fashion an appropriate sentence. We fully endorse the bill sponsored by Senator John Edwards that would eliminate all mandatory minimum sentences.

4. Get Rid Of Direct Indictments

This is another topic we’ve discussed in a prior blog post. In Virginia, criminal defendants charged with felonies have a "right" to a preliminary hearings. Preliminary hearings are super important to the defense. In fact, they're usually the defense's only opportunity to hear testimony from the key witnesses prior to trial. But why is the word "right" inside those scary quotation marks? Because it's a pretty limp "right" that the prosecution can take away whenever they want through a process called direct indictment.

If the "right" to a preliminary hearing is going to be more than a wet noodle, the General Assembly needs to write a better law. We suggest something along the lines of "no person prosecuted on a felony shall be tried in circuit court without a preliminary hearing or the defendant's written waiver of a preliminary hearing." See, that wasn't so hard!

5. Eyewitness ID Reform

This issue is near and dear to my heart. My first jury trial was a mistaken identification case. I’ve personally handled multiple cases where we conclusively proved mistaken identification (including a murder case). All of the evidence shows that eyewitness misidentification is the leading cause of false convictions by far.

So you would think that Virginia would take identification issues seriously.

There is no law in Virginia governing how lineups are conducted. Instead, the best we have is an unenforceable model policy on lineups. It's kind of like if Virginia had a model policy but no actual law that houses shouldn't be insulated with asbestos.

Well we’re in luck because North Carolina has a lineup law that we can steal. G.S. 15A-284.5 mandates double blind administration, sequential lineups, and a host of other best practices of ID procedure. If the police blow off the requirements, there is the novel concept of consequences.

6. Allow People To Expunge Old Non-Violent Convictions

The current law in Virginia only allows expungement of criminal charges that have been dismissed or dropped. If you were convicted, you're out of luck no matter how old the charge.

Why not add a provision that allows for the expungement of non-violent charges after a certain period of time? Does the world need to know that a 30 year-old was arrested for being drunk in public when he was a teenager? A 2009 Justice Department study found that a past criminal conviction of any sort reduced the likelihood of a job offer by 50 percent. It doesn't make any sense to permanently block people from reaching their economic potential for youthful mistakes. Our suggestion is a law allowing for the expungement of non-violent misdemeanor convictions after 5 years of no new convictions and non-violent felony convictions after 10 years of no new convictions.

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<![CDATA[Judges Hate Him For This One Simple Trick That Never Works!!]]>https://www.wkdefense.com/single-post/2020/03/13/judges-hate-him-for-this-one-simple-trick-that-never-works5f860348b9da6700170e2535Fri, 13 Mar 2020 18:29:47 GMTBassel Khalaf

Sometimes I get word in the courthouse that someone's about to argue that they're a "sovereign citizen" and therefore not bound by state or federal laws. I rush down to the courtroom and love every second of it because it's entertaining, it never works, and it makes me feel better about myself as a human being.

Here's how it typically plays out:

  • The case gets called and a guy struts up with a stack of papers.
  • The judge asks, "Are you Joe Smith?"
  • The guy refuses to answer and says that the court lacks jurisdiction over him.
  • The reasoning given varies from "I never agreed to be bound by your laws...haha!!!!" to "The obscure Barbary Pirate treaty of 1796 read in conjunction with the common law as interpreted through the UCC Code says I'm actually not a citizen but a creature of God...so I'm not bound by your laws, only Divine scripture....AHAHA!"
  • The judge, being a polite human being who understands everyone is entitled to their day in court, entertains about 2-3 minutes of gibberish before politely attempting to shut it down.
  • The guy then persists about his magical fairy tale loophole until the judge loses patience and either holds him in contempt or appoints an actual lawyer to assist as standby counsel.

The sovereign citizen argument has NEVER worked in the history of mankind. Stories abound about "a guy" who beat their charges by using the right elixir of nonsense words and the "case law" to prove it.

I suppose lawyers are partly to blame for speaking their own dumb gobbledygook language. But in the end, how can someone think they're entitled to commit crimes and not be held accountable simply because they didn't consent to being held accountable? Do these people think they can commit mass murder and then make their sovereignty argument and then the judge will be like, "Noooo! He's bamboozled us again. Alright, I have no choice. Apologies to the family members of all the victims...case dismissed!"

I'm not sure where the sovereign citizen idea originated or why it persists, but again: IT HAS NEVER WORKED. I'm guessing the reply to my rant would be, "Of course you'd say that, you're part of the conspiracy. You wouldn't have a job if people started using the magic words in court. You're part of the swamp. Fake news, fake news, fake news!" Fine dude, whatevs.

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<![CDATA[Does My 4-Year Old Think I'm an A-hole For Being a Criminal Defense Attorney?]]>https://www.wkdefense.com/single-post/2020/03/03/does-my-4-year-old-think-im-an-a-hole-for-being-a-criminal-defense-attorney5f860348b9da6700170e2536Wed, 04 Mar 2020 14:32:01 GMTBassel Khalaf

My 4-year-old's a cute kid (not pictured above). In his simplified worldview, police officers "stop bad guys." As a defense attorney who stands on the opposite side of the courtroom, I must be on Team Bad Guys, right?

Partly because I don't want my kid thinking I'm an irredeemable a-hole, I've been making an effort to school that ass on the nuances of criminal justice. But where do you begin with a four-year-old?

“Well son, you see, sometimes the police arrest someone. But the police are agents of the government who need accountability… and there’s this thing called the Constitution…”

That explanation doesn't work.

I tried planting a seed in his brain a few weeks ago when we drove past a sheriff's workforce crew and he asked me about the men in the orange suits. I said something along the lines of: “Those people got in trouble for being bad but now they’re cleaning up trash for everyone so they can be good.”

It was an explanation intended to point out that the world is made up of shades of gray -- unlike in PJ Masks where villains just do villain shit. Of course, my ultimate objective is to Jedi-mind trick him into admiring my role in criminal justice because I need him to love me. But to get there I've needed to give him a general foundation.

Here are the hot justice nuggs I've served him thus far:


POLICE

The police do stop bad guys. They have a very hard job and they're very brave. If you’re ever in trouble you should ask them for help. They’re there to help people.

Buuuuut... sometimes the police stop people who they think are bad, but they really weren’t bad. That’s part of why it’s so hard to be a policeman.

And sometimes they stop people who did something bad and then they give those people help to be good again.

BAD GUYS

Everyone acts a little bad sometimes. It doesn’t always mean they’re bad guys. Sometimes people do bad things and don’t get caught. Some people might only do one or two bad things but then they get in big trouble.

JAIL

Jail is like a BIG timeout. You go there to think about what you did and sometimes they keep you in there so you won’t get out and do more bad things. Some people even get their bottom spanked while they're in there.

CRIMINAL DEFENSE

Did you ever get in trouble but you thought you didn’t do anything wrong? I help people who get in trouble -- because maybe they didn’t do anything wrong. Or maybe they did something wrong but they need help to be good again.


Anyway, my role in "the system" is a tough topic to tackle. To be fair to my four-year-old, there's a large percentage of the adult population who struggle to comprehend a defense attorney's role in justice and due process:

"How could you represent someone who..." "How do you sleep at night after you've stood next to...," etc. and so on for eternity.

Adults are great at compartmentalizing to preserve their fragile constructs. We hate big government, but love the agents of the government who enforce all its big laws. We love the Constitution, but hate cases being dismissed on constitutional "technicalities." We love the presumption of innocence, but not when it involves someone who's been accused of a yucky crime.

In the end, I don't really give a shit about all that. I just need my boy to love me :(

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<![CDATA[The Top 25 Defense Attorney Slogans In The World]]>https://www.wkdefense.com/single-post/2020/02/06/the-top-25-defense-attorney-slogans-in-the-world5f860348b9da6700170e2537Thu, 06 Feb 2020 20:30:07 GMTTaite Westendorf and Bassel Khalaf

As we discussed in a prior blog post, public defenders “are underpaid, overworked, underappreciated, and under-resourced. They bust their asses day in and day out and get little to no respect.” We would know because we were public defenders for a combined 16 years before we went into private practice. But one luxury of being a PD is that you don’t need to worry about marketing. While marketing makes us feel gross, it’s tough to run a business if people don’t know you exist. We’ve been figuring marketing out as we go, but one key ingredient of any successful campaign has eluded us: WE LACK A SLOGAN!

The process of selecting a slogan has been long and tortuous. We’ve been toiling endlessly in the W&K lab to craft a combination of words so epic, so brilliant, that Shakespeare himself would puke all over himself upon reading it. Unfortunately, our quest proved fruitless. That is until today. We entered the word “defense” into an online slogan generator and the results were spectacular. We are proud to introduce a list of slogans of such potent force that clients, prosecutors, judges, and juries alike will be powerless in the face of their rhetorical splendor. They range from the blandly plausible to the bleeding edge of abstraction. Behold the official list of potential W&K slogans in all its shimmering glory:

Westendorf & Khalaf,

1. Feel The Defense

2. Because So Much Is Riding On Your Defense

3. Defense That Works Like Magic

4. Feel The Raw Naked Power Of Defense

5. Top Breeder Recommended Defense

6. I Liked The Defense So Much, I Bought The Company

7. Where Defense Is A Pleasure

8. Eight Out Of Ten Defendants Who Expressed A Preference Said They Preferred Defense By Westendorf & Khalaf

9. We’ll Show You Our Defense If You Show Us Yours

10. Better Ingredients, Better Defense

11. Dude, You're Getting a Defense!

12. We Help Criminals

13. Plop, Plop, Fizz, Fizz, Oh, What A Defense It Is

14. Wait Till We Get Our Defense All Over You

15. Criminal Defenseeriffic!

16. Gee, Our Defense Smells Terrific

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<![CDATA[Taking An L]]>https://www.wkdefense.com/single-post/2020/01/10/taking-an-l5f860348b9da6700170e2538Sat, 11 Jan 2020 03:37:49 GMTTaite Westendorf

If you’re a criminal defense attorney who tries cases, you inevitably experience the pain of losing in court. Some losses are more painful than others. In many cases, you walk into court knowing that you’re almost certain to lose. It’s never fun to lose, but it’s a lot easier to brush off defeat when you know that all of the facts and the law were stacked against you. The more difficult losses occur when you walk into court believing that you should win and things go sideways. I took a hard loss this past week that’s been on my mind for a couple of days now. Thankfully, it wasn’t a loss that resulted in my client spending years or even months in prison. But he’s gone to jail and I didn’t think that he should, and I feel terrible about it.

Criminal defense lawyers don’t talk much about losing. Nobody is going to plaster losses on their website because it doesn’t make for good advertising. But I thought that it might be useful to others and myself to talk about processing a loss. The expression “take an L” means taking a loss. But “taking an L” doesn’t mean that you’re an irredeemable loser. “Taking an L” simply means accepting that you’ve lost and moving on. As an essay on the Ringer wisely stated: “When people tell you to take an L, they’re not telling you to lose. They’re telling you that you need to get over losing because you’ve already lost. They’re telling you, don’t have a tantrum...Accept loss, keep your dignity. Live with it.”

While taking a loss in the courtroom or any arena of life produces painful emotions, harnessing that pain is often precisely what’s necessary to grow and improve. My favorite sports figure, Virginia head basketball coach Tony Bennett, took one of the most embarrassing Ls of all time when his team became the first #1 seed in history to lose to a #16 seed in 2018. The whole country watched UVA not only lose but get blown out by a team that had no business being on the same court with them. Tony was ripped to shreds in the press and Twitter was ablaze with jokes about how UVA was a gimmick program that would now fade into oblivion. It would have been easy for Tony to slink away with his tail tucked between his legs. Instead, he embraced the loss and described it as a “painful gift.” One year later, his team pulled off the ultimate comeback and shockingly won the national title. In his post-game press conference, he said “If you learn to use it right, the adversity, it will buy you a ticket to a place you couldn't have gone any other way." While we all enjoy winning more than losing, it’s taking Ls, the faceplants and the failures, that makes us stronger.

But to get the full benefit of “taking an L,” it’s not enough to merely accept defeat. You have to put in the painful work of introspection, self-doubt, and reflection on what you could have done differently. Thinking about losing is painful because it means “smearing the delicate portraits drawn of ourselves in our heads.” But if you’re going to get something out of these “painful gifts,” you have to be willing to go there. In Tony Bennett’s case that meant completely rethinking how he ran UVA’s offense. In the case of a criminal defense attorney, that means being hard on yourself. It means challenging and doubting the decisions that you made over the course of a trial. It means confronting your own ego and admitting that your arguments might not have been as brilliant as you thought.

If you’re a criminal defense attorney, and all you ever say after “taking an L” is some variety of “The judge sucked. The jury sucked. The law sucked,” you’re never going to grow as an attorney. If you’re going to get anything out of an L, it means putting deep thought into what you could have done better. Even when you win, you should be thinking about what you could have done better. The reality is that many wins and losses are flukes that could have easily gone the other way.

This post has become a bit meandering, but I want to leave with a few key points. 1. Trying cases as a criminal defense attorney is hard. You’re going to take some Ls. But if you’re one of the attorneys who actually tries cases instead of being part of the guilty plea machine, you’re already on the right track. 2. When you take your inevitable Ls, don’t be one of the attorneys who blames everyone but themselves. Surround yourself with people who will be honest with you rather than tell you how awesome you are and how nothing that went wrong at trial is your fault. 3. Be tough enough to accept your defeats with class. If you try cases, you’re going to get punched in the face. You will be treated unfairly at times. It can be tempting to take your ball and go home. Don’t be one of those people. If you take an L, it’s fine to have a few drinks and wallow in self-pity for a few hours. We’re only human. But keep the pity party brief and then put in the real work of self-assessment and deep thought about what you could have done better for your client.

Taking Ls is hard. But it makes us better, stronger, and more interesting people. Perfect people are boring. Undefeated people are only people who never took any real chances. Take pride in being one of Teddy Roosevelt’s men (and women) in the arena “who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds.”

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<![CDATA[Well, Allow Me To Retort. Myles Garrett Committed A Crime But He Shouldn't Be Labeled As A Crimi]]>https://www.wkdefense.com/single-post/2019/12/05/well-allow-me-to-retort-myles-garrett-committed-a-crime-but-he-shouldnt-be-labeled-as-a-c5f860348b9da6700170e2539Thu, 05 Dec 2019 19:00:41 GMTTaite Westendorf

My law partner Bassel recently posted on our blog about Myles Garrett cracking Mason Rudolph upside the head with his own helmet and posed the question of whether he should be criminally charged. The post got a lot of attention by our standards. Over 1,300 people voted in a poll with 77% voting that Garrett should not be criminally charged. I’ve probably missed the zeitgeist of the week, but I still wanted to offer a comment since Bassel mentioned that we disagreed on whether Garrett committed a crime.

I do believe that Myles Garret committed a criminal act. I get that the rules on a football field don’t mirror the rules in society. Post-play pushing happens every game. Dirty hits happens every game. People get concussed every game. It’s a rough sport, but there's still a reasonable scope to what’s acceptable on a football field. It reminds me of a quote from Happy Gilmore: “During high school, I played junior hockey and still hold two league records: most time spent in the penalty box; and I was the only guy to ever take off his skate and try to stab somebody.”

Garrett, perhaps inspired by his deep and abiding love for Adam Sandler movies, decided that he wanted to be the only guy to ever rip off his opponent’s own helmet and beat him with it. There is a reason why Happy was the only hockey player to ever try to stab someone with a skate. Because it’s not part of the game and only a true Captain Insano would do it (points if you spotted the second Adam Sandler reference).

But just because I think Garrett committed a crime doesn’t mean that I think he should be arrested and hauled away in handcuffs. In fact, I don’t believe that he should be charged at all despite the fact that he committed a crime. And that’s where I get to the subject of this post: prosecutorial discretion. Prosecutors have total discretion to charge or decline to charge someone. They also get to decide which charges to pursue. That extraordinary discretion makes them the most powerful actors in the criminal justice system by far.

Every prosecutor (I hope) will tell you that their duty is to do justice and not just obtain convictions. So what is a good prosecutor looking at when deciding whether to bring the smackdown or take it easy on a particular defendant? A non-exclusive list would be things like: 1.) The seriousness of the crime. Was it violent or non-violent? Was anyone hurt?; 2.) The defendant’s prior criminal history; 3.) Does this defendant fit within a larger criminal ecosystem in the community; 4.) Has the defendant taken steps to make things right such as paying restitution or entering treatment?; 5.) Has the defendant been punished outside of the criminal justice system; 6.) Does the victim want the case to be prosecuted?

Let give you an example. The allegation is that the defendant was caught selling dime bags of marijuana.

Scenario 1: The defendant is 18 years old with no prior record. He’s on track to graduate from high school and go to college in the fall.

Scenario 2: The defendant is 32 years old. He has 8 prior felony convictions including malicious wounding, possession of a gun by a felon, and selling drugs to minors.

Should we treat both defendants the same because they committed the same crime? Of course not. Lady justice may wear a blindfold, but she isn’t dumb, deaf, and blind. A well functioning criminal justice system takes into account the specific facts of each case and the personal characteristics of each defendant.

In Garrett’s case, the crime wasn't all that serious. Mason Rudolph walked away with a sore noggin, but that’s about it. Garrett doesn’t have a prior criminal record off the field. There's nothing to suggest that he’s a danger to society. Instead, all of the evidence is that he’s a guy who has a hard time controlling his emotions on the field. He’s already received a massive punishment through the NFL costing him millions of dollars not to mention possible lost endorsements and other opportunities. Moreover, Mason Rudolph has said that he doesn’t want to pursue it.

I think the 77% of the people responding to our poll voted the way they did because they know that no justice will come from permanently labeling Garrett as a criminal and/or putting him in jail. Perhaps that sentiment might be a teachable moment to some young baby prosecutor out there who believes that every defendant is a nail that needs to be hammered. You have incredible power. Don’t use it just because you can. There will be many more situations like this one where the best outcome is for the criminal justice system to sit on the sidelines.

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