Recent Blog Posts

Possession With Intent to Distribute

McGennis Williams — Wed, 23 Mar 2011 20:13:00 GMT

DRUG POSSESSION WITH INTENT TO DISTRIBUTE IN FAIRFAX OR MANASSAS OR WOODBRIDGE

Most drug possession cases come about because someone is trying to "work off" their own drug charge by setting up one of their friends.

Undercover Fairfax County police are trained to look, act, and talk like drug users. Mostly, though, they do not interact with the person being set up. Mostly, undercover Fairfax County police or undercover Prince William County police remain in the car or in the back seat where they cannot be seen clearly by the person being set up.

Hand-to-hand buys between the accused and undercover police are very hard to defend. Many people accused of possession with intent to distribute, PWID, work off their charge by setting up someone else. Someone else as low on the totem pole as themselves.

There lots of drugs right now that do not necessarily fit the description of illegal drugs as defined in the Virginia Code.

Make sure that the drug you are charged with distributing is in fact illegal.

Then, analyze the identification. Maybe the police officer did not get a good look at you. Maybe your "friend" has you mixed up with someone else.

Maybe your "friend" really set up someone else who looks like you and used your name to the police.

Always check the value of the identification evidence against you.

Make sure there is a certificate of analysis from the Division of Forensic Sciences. Double check the quantity listed.

There are very specific procedural rules regarding what sort of testimonial and documentary evidence is admissible in drug cases. Make sure that your attorney carefully explains this to you.

Your attorney should do everything possible to keep the certificate of analysis from coming into evidence.

If the certificate of analysis does come into evidence in Circuit Court, it will be because the forensic scientist who created the certificate of analysis is in court to testify as to what it says.

Prior to trial, your attorney should talk to the scientist at the Division of Forensic Sciences who analyzed the drug.

How many times what the drug analyzed? How much of the drug was used in the analysis?

At trial, when the prosecutor attempts to qualify the forensic scientist as an expert, your attorney should carefully cross examine the scientist at to her or his qualifications before agreeing to allow her to testify. This is called voir dire. Your attorney should use this opportunity to call the scientist's expertise into question.

When the scientist does testify, your attorney should carefully cross examine as to methods used by the scientist.

You should also think about the pros and cons of hiring your own expert.

EVIDENCE

McGennis Williams — Tue, 22 Mar 2011 17:41:00 GMT

EVIDENCE

Evidence includes testimony and/or documents and/or forensics that are relevant to the prosecution or the defense in a particular case.

Testimonial evidence may be offered by an eye witnesses. That is, someone who saw or heard something that tends to prove a point relevant to the prosecution or defense. Testimonial evidence may be offered by the alleged victim or an expert or a police officer who investigated the case.

Documentary Evidence can be almost any document that you can think of. However, it must be authenticated which means that someone from whatever business or institution that created the document must qualify as the person responsible for maintaining the file for said document. Also, the document must be something that is relied upon in the normal course of business of whatever entity has produced it. Any document that is created for use at trial is not admissible.

Forensic evidence includes DNA, fingerprints, footprints, hair, etc. Forensic evidence is the stuff that needs to be described as to its identity and importance by some kind of expert. Forensic stuff is not evidence unless someone who has been properly qualified can talk about what it is and how it is of relevance to the case.

The "expert" who testifies about the forensic evidence must be carefully cross examined with the intent to impeach. Many so-called experts are just a bunch of hot air.

What are their credentials? How long employed? Who is paying them for their work? Who is paying them for their testimony? How many times have they testified for the defense? What have they published? What do they read? There are lots and lots of ways to de-value a so-called expert's testimony.

The prosecution's evidence should always be treated with skepticism by the defense. Even if it gets admitted, the defense can still attack its value.

Grand Larceny

McGennis Williams — Mon, 21 Mar 2011 18:56:00 GMT

GRAND LARCENY

WHAT THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT

In order to obtain a conviction for grand larceny, a felony, the prosecution must prove the following elements of the crime and they must prove each and every element BEYOND A RESONABLE DOUBT:

1. That you took property and carried it away;

2. That the taking was against the will and without the consent of the owner;

3. That the taking was with the intent to steal; and

4. That the property was worth $200 or more.

“Steal” is defined as “the intent to permanently deprive.” So, if you intended to borrow and not permanently deprive, you are not guilty; but you must be able to (1) show through cross examination that the prosecution’s evidence of your intent to permanently deprive is non-existent or weak and/or you must have evidence of your own that you only intended to borrow the property.

You don’t have to be caught outside the store if the accusation is shoplifting. The jury can find that you “carried away” the property even if you are still inside the store.

Value can be proven in any number of ways including testimony from the alleged victim. Your attorney needs to scrutinize and, where appropriate, attack the evidence of property value.

If the prosecution cannot prove that the value of the property was $200 or more, but they can prove the other three elements, the jury can convict you of petit larceny, which is a misdemeanor.

Assault & Battery

McGennis Williams — Fri, 04 Feb 2011 19:19:00 GMT

Words can never be an assault.

"Name calling" is never grounds for an assault and never grounds for physical action that might be called "self-defense."

An assault is an act that either intends to do bodily harm to another person or intends to make another person fearful of bodily harm. This means that merely raising your fist in a threatening manner may be deemed an assault.

Battery is an intentional touching of another without justification, done in an angry, rude, insulting or vengeful manner.

These definitions mean that you can be accused of assault or assault and battery [the terms are often used interchangeably] by doing very little, if anything.

For instance, deliberately spitting on someone is deemed an assault, deliberately brushing up against another person may be deemed an assault, if your car "deliberately" touches the car of another, that might be deemed and assault.

The key word is "deliberately." You must intend to touch the other person or make the other person fearful that you will touch them in a way they do not want to be touched.

Assault or assault and battery is a class one misdemeanor in Virginia and is punishable by up to one year in jail and/or a $2500 fine. This is true in Fairfax and everywhere in Virginia.

Since it is a misdemeanor, assault or assault and battery are tried first in General District Court.

The standard of proof that the government must meet in order for the judge to convict is beyond a reasonable doubt. This is true in Fairfax and everywhere.

General District Court is not a court of record in Virginia. So, unless the defendant brings her or his own court reporter, there will not be a recording of the trial.

It is very important that you have a record of the trial in the event that you want to have a new trial in Circuit Court. It is hugely important to planning a trial to have a record of a previous trial. With the record, your attorney can point out to the judge or jury that a key witness has changed her or his testimony, which makes the key witness seem untrustworthy. You and your attorney can also plan better about what questions to ask the government's witnesses and what the exact evidence is against you. People think they are going to remember exactly what happens in trial. They don't. A trial is very emotional and detailed. GET A COURT REPORTER!

For defenses to an assault or assault and battery charge, see my other blogs, such as:

Self-Defense; Duress; Accident; Bias; Motivation to Fabricate; Impossibility.

Police Enter Your Home Without a Warrant

McGennis Williams — Mon, 24 Jan 2011 19:13:00 GMT

When the police come to your door in Fairfax or anywhere else, tell them not to come in without a warrant. Police need a search warrant to enter you home unless you invite them in.

Do not stand aside just because it is the police. It is your home and the police have no right to enter your home without your permission.

There is an exception to the warrant requirement, called "exigent circumstances," when the police have reason to believe that someone whom they have been hotly pursuing [as in chasing] is in your home or if the police have reason to believe that you are about to flush away or otherwise destroy evidence of a crime or if the police are investigating a recently received 911 call regarding an allegation of domestic assault. Even in these circumstances, your lawyer should contest any evidence acquired by the police in your home when they did not have a warrant to enter.

WHEN A LOVED ONE GETS ARRESTED-YOUR INITIAL RESPONSE

McGennis Williams — Tue, 18 Jan 2011 20:12:00 GMT

Number one, do not freak out.

Number two, find out if the magistrate set a bond. Your loved one in jail should know what bond has been set. Let's call your loved one in jail "D," as in Defendant, you need to get used to this term. He or she is now a Defendant because she or he must now defend him or her self against the allegation.

Number three, call a bondsman. Do an internet search. Call several. The standard rate that a bondman charges is 10% of the amount of the bond. However, the price is often negotiable. Some charge 8%. Some charge even less. Negotiate. Paying a bondsman is just the beginning of what could be a very expensive process.

You should expect the bondsman to be able to find out where D is in the jail, the amount of bond that has been set, and the arraignment date. Once you have gotten D out of jail or have learned that D has no bond and is being held in jail until you find a lawyer to argue a bond motion, go to number four.

Number four, find a criminal defense attorney. Not a divorce attorney. Not a personal injury attorney. Not someone who handled a civil matter for you or a friend. Not Not Not Not a lawyer friend of the family. Don't do that to your lawyer friend of the family and don't do that to D. You want someone who practices criminal defense law. Preferably, you want someone who spends most of their time practicing in the county or city where D is charged with the crime.

Do not hire the first lawyer you talk to. Do not hire a lawyer based only on what you have heard about her or him. Do not hire a lawyer based only on her or his website. Do not hire the cheapest lawyer.

Interview several lawyers before hiring one. If you do not have time to visit lawyers in their office, ask for a phone consultation. You should not have to pay for an initial phone or an in-person consultation. Be wary of lawyers who won't talk to you unless you pay them. Be wary of lawyers who either refuse to talk on the phone or insist on an in-person consultation. You should be able to get the kind of consultation you want whether it is by phone or inperson or both.

Do not be intimidated by lawyers. We are tradesmen. Law school is a trade school. We carry a brief case instead of a work belt.

Pick the lawyer who is most willing to answer all your questions and who is not impatient and who does not use unnecessarily big words or Latin words. Do not hire a lawyer who rubs you the wrong way or makes you feel rushed or insecure in any way. You or D or both of you, if D wants you to be present, are going to be spending a lot of time with this lawyer, so it needs to be someone who makes you feel safe.

Don't pick the most expensive lawyer. There are plenty of lawyers who will do an excellent job without charging you an arm and a leg.

Be prepared to pay all or most of the lawyer's fee up front. Civil lawyers typically bill by the hour or fraction of the hour. Criminal defense lawyers tend to bill according to what crime D is charged with.

Number five, be prepared to go to the bond hearing if one is required. Be prepared to be at all court hearings if possible. People who are accused of crimes need lots of support from their loved ones and going to court with D is a great show of support.

TALKING TO POLICE

McGennis Williams — Mon, 10 Jan 2011 16:49:00 GMT

TALKING TO POLICE

You should never, never, never talk to police about your case unless your attorney is present. That's not because the police are dishonest, deceitful, untrustworthy, unintelligent, corrupt, despicable, and narrow minded, although some of them are. It's because your words can be twisted and used against you by the police and by the prosecution.

If ever you are stopped by the police, first ask if you are being arrested. If you are not being arrested, you are free to walk away. No one who is not under arrest is obligated to talk to the police.

If you ever are arrested, immediately tell the police that you will not talk with them without your attorney. If you do not have an attorney, tell the police that you expect to hire an attorney or you expect that the court will assign a public defender or court appointed attorney to you and you know that your attorney will be angry with you if you talk with the police.

Always, be polite and respectful with police officers. Never, never, never threaten them or yell at them or act as if you have a weapon of any kind.

Eye Witness Identification

McGennis Williams — Mon, 10 Jan 2011 16:33:00 GMT

Eyewitness Identification

Eyewitness identification is wrong much of the time. If you are accused of a crime and the evidence against you includes eyewitness identification, cross examination of that witness should include:

●Time of day?

●Light Source?

●Direction from which the light source shines?

●What was perpetrator wearing? Top, Bottom, Shoes, Hat, Jacket, Socks, everything.

●Height, Weight, Hair color, Eye color of perpetrator?

●How many seconds were you looking at perpetrator?

●When was your last eye check up?

Photo Array

When someone claims to be an eyewitness to a crime, the police sometimes find photographs of people who look like the description given by the eyewitness. Then, the eyewitness looks at the photo array and picks out the person that he or she saw

There are very specific rules that need to be followed by the police when conducting a photo array identification. Defense must question the procedure thoroughly.

Line Up

When someone claims to be an eyewitness to a crime, the police sometimes find several people who look like the description and have them line up so the eyewitness can pick out the person he or she supposedly saw commit the crime.

There are very specific rules that need to be followed by the police when conducting a lineup. Defense must question the procedure thoroughly.

Show up

Sometimes the police just grab someone off the street who happens to be nearby an alleged crime and then put the alleged victim in a police car and drive by that person or take that person to the alleged victim for identification.

Show-up identifications are highly suspect and should be attacked by the defense.

FORENSIC EVIDENCE TERMS

McGennis Williams — Mon, 10 Jan 2011 16:21:00 GMT

DNA Evidence

DNA stands for deoxyribonucleic acid. It contains the genetic instructions used in the development of human beings as well as most living organisms.

DNA evidence has been used to exonerate people who have been wrongly accused of crimes. It has also been used to prove people who have been accused of crimes guilty beyond a reasonable doubt.

People who are accused of crimes and told by police or prosecutors that their DNA has been found at the scene of the crime should not panic and believe that they will automatically be found guilty of whatever crime they are accused of.

Keep in mind the following facts about DNA:

1. It is transferrable. If you shake someone's hand, your hand will have that person's DNA on it.

2. It can mix with the DNA of another person. If you cut your finger and your blood comes into contact with the blood of another person and the "combined blood" smears onto an object, that object will have a mixture of both your DNA and the other person's DNA. If that very same object has been handled by a third person or many persons, the object will have many person's DNA which makes identification more difficult.

3. DNA is found in nearly every body fluid: blood, semen, saliva, etc. If body fluids from one person mix with the body fluids of another person, there is a DNA mixture which makes identification more difficult.

If you are accused of a crime in which DNA is part of the evidence against you, you must have your own forensic expert to interpret the evidence.

Fingerprint Evidence

Fingerprint evidence, like DNA evidence, is not infallible.

Analysis of fingerprint evidence is highly subjective and too often wrong.

When fingerprint evidence is available, the defense must have their own expert to interpret the evidence.

Shoeprint Evidence

Shoeprint evidence is even more subjective than fingerprint evidence. When the prosecutor has shoeprint evidence, defense should have their own expert.

SANE Report

SANE stands for Sexual Assault Nurse Examiner. Following the allegation of sexual assault, the alleged victim is often taken to the hospital and is examined by a SANE who has received special training.

The SANE examines the orifices of the alleged victim for trauma using special lights to show trauma that might not be seen by normal vision.

The SANE also takes swabs from the orifices of the alleged victim and marks and packages those swabs and puts them in a PERK.

Whenever there is a SANE report, the defense should spend significant time with the SANE to understand the report.

In rape or forcible sodomy case, usually, the defense should have their own SANE expert.

PERK

PERK stands for physical [or personal] evidence recovery kit.

When the SANE puts swabs into the PERK, the PERK is then picked up by someone form the police department who submits it to the division of forensic sciences for evaluation. The division of forensic sciences is looking for DNA or other evidence to identify the perpetrator of the alleged sexual assault.

The CSI Effect

Television shows like CSI have people thinking that if the police say they have your DNA or fingerprints or hair follicles, or something else that sounds "forensic" that you will automatically be found guilty. Not true.

Many times DNA found at the scene of a crime is a mixture of many people's DNA and cannot scientifically be linked to one particular individual.

Welcome to our FairFax Criminal Defense Blog

McGennis Williams — Thu, 23 Dec 2010 19:44:00 GMT

Our attorneys are pleased to announce the launch of our criminal defense blog.