The Law Office of Guy F. White

07/16/2024

Just overheard a TV cop say to a suspect "Unless you want to get Mirandized, you'd better talk to me"

In other words: "if you don't want me to advise you that you don't have to talk to me, you'd better talk to me."

Sigh

I have to stop watching TV

07/14/2024

Today I have two stories from my trenches to further illustrate that my world – the criminal world – is a lot different from the real world and what works in one does not work in the other.

In the first instance, my young client was discovered to be stealing from her boss. She felt really remorseful about stealing from her employer and she texted an apology to him. She told him that she didn’t mean to hurt him and that she was only trying to make ends meet. She’s truly sorry. In the second instance, a young driver hit a parked car in the middle of the night – totaling both cars. The driver panicked and walked away from the accident. He returned to the scene the next morning and his car had been towed away. He felt terrible about what he had done and wanted to apologize to the other car owner and to the police

In both cases, my clients’ first instinct was to do the right thing. “I am in the wrong and I must try to make things right. Tell the truth and admit what I did.” I can’t say I blame them; we all want to behave virtuously. It’s a good trait to have. I was raised the same way.

However, in my world – the criminal world – both of these clients’ instincts were disastrously wrong. The remorseful and well-meaning young lady who stole from her boss is now facing a felony embezzlement charge where she could end up in jail for five years. It’s nearly impossible to meaningfully or credibly plea not guilty to this felony because she admitted doing it. She meant well; she did what she was raised to do. But since she admitted stealing from him in a series of text messages, all I can do is try to minimize the damages. In Virginia, if she stole less than $1000, then the charge is a misdemeanor and having the case go down as a misdemeanor is the best I can do. Should she go to jail over this? Probably not, but because this young girl was raised to be so honest when confronted with wrong=doing I’m reduced to arguing dollars and cents instead of culpability. Very frustrating.

The young driver had the same instincts. Do the right thing and be honest when confronted with wrong-doing. However, this gentleman’s mother decided she would call me first. I told her that I understood her son’s decision to confess and his desire to come clean spoke well of how he was raised. But I needed the mom to understand that if his son spoke to the police he would be admitting to a felony where he could go to jail. If he gift-wrapped a conviction for the prosecutor, what would happen to her son would largely be up to the prosecutor. The prosecutor would have all the power as to his freedom or as to the nature of his criminal record. Did we want that?

But because she called me instead of allowing her son talk to the police, I was able to resolve the matter with the police and with the insurance companies without criminal charges being filed.

When confronted by the police we all have that urge to tell them the truth. It just feels like the right thing to do. And in one world it is. But in my world it isn’t. Don’t do it. Resist the temptation. Never speak to the police without a lawyer.

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06/03/2024

A very pleasant gift from a client. I'm a Bournemouth guy myself but I recognize quality when I see it

05/04/2024

Yesterday I had the privilege of observing attorney Damon Colbert try a DUI case in Arlington County. Masterfully done. Notably, at the time he was pulled over, his client refused to take any field sobriety tests. It seems counterintuitive, because it seems to be in our nature to do what the police ask of us, but we do not have to take those “stupid human tricks”. So why would we? As I tell all my clients, they have to prove you did it; you don’t have to prove you didn’t. So let’s not help them.

Without any field sobriety tests to fall back on, Mr. Colbert convinced the judge that there was no significant evidence of impairment even though there was an accident. “Accidents happen to sober people all the time,” he said. On cross examination, Mr. Colbert was able to impeach the officer’s testimony about his client’s slurred speech and bloodshot eyes. At the end, the judge had to concede that he had his suspicions but could not find beyond a reasonable doubt that Mr. Colbert’s client was impaired. It was very well done.

I love to watch other lawyers try cases. There’s so much to learn about what trial tactics work and which don’t, or how to use these tactics better. How can you make your arguments stronger? Or how can you phrase your questions to get the best result. As Yogi Berra used to say: “You can observe a lot by just watching.”

In the meantime, if you get stopped by the police and the officer asks you to take field sobriety tests, don’t. And never talk to any law enforcement without a lawyer present.

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01/12/2024

Exciting News! I am now featured on LawFirms1, a leading platform connecting clients with top-notch legal services worldwide. Check out my profile to learn more about my practice and how I can assist you with your legal needs:

After 20 years as a prosecutor I am hanging out my shingle and seeing the criminal law world from the other side. So I know how prosecutors think.

12/24/2023

Merry Christmas, Everybody!!!

Yesterday I was reaching into my mailbox, hoping for some cool Christmas cards. Instead, I found a “Notice of Violation & Summons”!!! Yes, a traffic camera bagged me making a right on red without fully stopping. And sure enough, there was a link on the violation to the actual video which clearly showed me blowing the light

$50. RATS!!

My criminal defense attorney instincts immediately kicked in and I started to get a little angry. The camera doesn’t show that *I* was driving my car at the time. How can they tell who was driving and therefore, who committed the offense? How do I know that the camera was working properly? How can I tell if the camera was properly maintained according to set maintenance procedures?

All of these questions instantaneously popped into my head. Because to lawyers, especially criminal defense lawyers, it’s about the process as much if not more than about the result. Clearly I blew that red light; that’s not in question. But did we come to that result fairly and properly?

My opinion is no. Not just because I don’t know if the camera was working and was maintained properly. I predict that they can show documentation as to how well that particular camera has been maintained. But rather my bigger concern is their ability to show that I was the one driving and was the one who actually did something wrong.

What really gets my goat is Virginia Statute 46.2-882.1 (3) which says that if they can show that it was my car it “shall constitute in evidence a rebuttable presumption that such owner, lessee, or renter of the vehicle was the person who committed the violation.”

In other words, the burden of proof shifts to me to prove that I didn’t do it. And to prove that I didn’t do it, I would have to either tell the court who *was* driving my car or would have to show a police report to show that my car was stolen. The burden is on me. The burden should never be on me. The burden of proof should never be on the accused. It’s unconstitutional!!!

The statute tries to get around this complication by saying that this penalty is civil in nature and not criminal, nor is it a moving violation that adds any points to my driving record. Finally, it’s only $50, who’s going to make a big Constitutional issue over $50? I suppose it’s true, but it still bothers me.

Again, it’s not the result that’s the problem. Clearly, I’m guilty. It’s the process that is just plain wrong. Keep in mind that just about every judicial outcome has a result component and a process component. We may love the court’s holding (say, that President Trump shall not be on the Colorado ballot), but we have to be confident in the process (for instance, can an individual state court make a ruling from a federal law?)

We cannot be so happy that we got a mass murderer off the street that we’re okay with searching his house without a warrant to do it. If they can trash his house without a warrant because he’s a really bad guy, then tomorrow someone can allege that you’re a really bad guy and they can trash yours without a warrant. If we’re ever complacent with diluting the Fourth Amendment, or the Fifth Amendment – i.e. the “process,” then our democracy will disappear. Even if the result seems worth it at the time.

11/28/2023

Yet more examples of why you should never talk to the police without a lawyer: I have been in the middle of a particularly nasty drunk driving case that never should have been filed in the first place. Someone saw the car that my client had been in driving erratically. The concerned citizen could not see who was driving, but the car was “all over the road.” He called the cops and gave them the license plate number. The cops ran the license plate number and showed up to my client’s home where my client was standing on the passenger side of the car that was sitting safely in the driveway. Very importantly, no one saw my client driving, which is something the Commonwealth would have to prove in a drunk driving case.

My client tells me that his wife had been driving and not him. But when he told this to the police officer, the cop wasn’t buying it. The officer started asking my client if he had been driving and my client denied driving -- not once, not twice, but three times.

Finally, the police officer asked, “Where are you coming from?” and my client said, “I was bringing my kids home from a birthday party”
To the police officer “bringing” and “driving” were interchangeable. The officer had his confession and my client was arrested.

Needless to say, if my client had exercised his Fifth Amendment right against self-incrimination, and not spoken to this officer without an attorney, there would have been no way to prove that my client had been driving and he would not have been arrested and the case would not have been filed.

Along those same lines: tomorrow I have a case involving a 14-year-old who is charged with driving his Dad’s car around the parking lot and hitting a couple of parked cars. Previously, I asked the prosecutor if we had any evidence that the kid had been driving. It seems that a few civilians may have seen him. We’ll see tomorrow if any of them show up for court. If none of them appear (which is likely), the case will probably be dismissed.

I bring this up because the arresting officer shared with me, in a very frustrated tone: “The kid was this close to confessing to driving until his Dad called you. This close.”

09/15/2023

I’ve been getting a lot of petit larceny cases involving the self-checkout devices in supermarkets that have me greatly concerned. I have always disliked those impersonal technological totems to efficiency in large part because I always had trouble getting the bloody things to work. Invariably, I would have to press the button that calls for assistance; the guy would come over to my kiosk, immediately see the problem, politely smirk at me like I was an idiot; and only then would I be able to check out with my groceries. So it is with trepidation, if not outright fear, that I’ve been noticing that more and more supermarkets are relying on my mechanical nemeses rather than employing friendly people who smile at me every now and then.

However, these self-checkout kiosks are causing lots of other problems when supermarket loss prevention officers (LPO) notice discrepancies between what their inventories should be according to their computers and what they really are. As a result, LPOs spend a lot of time watching videos from the cameras that are mounted at every kiosk. Sometimes they believe they see irregularities, also known as “skip scanning,” when it looks like a suspect seems to neglect scanning one of their items. If the suspect has four items, he scans three items and misses the fourth, thereby not paying for that last item.

But if you think about it: there are many ways that skip scanning can be an honest mistake. What if the little laser doesn’t read the zebra label correctly, or what if you have two of the same item, and you inadvertently only scan it once? Here is a scenario I found myself in: I have about ten bags of groceries. About three bags fit on that little one-foot metal square they give you place your bags. That means I still have about seven bags still to go. Another three or four bags went on the floor, which left about another three or four bags still in my cart with nowhere to put them. So I had to scan the groceries and place the bags back in the cart. It took quite a bit of doing for me to remember which items, in which bags, I had scanned and which items I had not.

These irregularities are very inconvenient for everyone concerned. Often, the LPO won’t get a chance to watch the videos from the kiosk cameras until well after the suspect leaves the store. Then, the LPO has to figure out who neglected to scan the peanut butter from his debit card information and from the camera. If he can somehow come up with a name or address, then he has to call the police and ask that the police go to the suspected skip scanner’s house and issue him a summons to appear in court. The poor unsuspecting soul, who has no idea that he may have made an honest mistake three days earlier at the self-checkout counter all of a sudden has a police officer knocking on his door. Later in court, prosecutors and defense lawyer need to figure out whether the action is really an honest mistake or something a bit more sinister.

I’m always paranoid that I am going end up as one of those blokes who have the police show up at my door with a summons to appear in court because somehow the LPOs think I didn’t sufficiently scan my gallon of milk at a self-checkout kiosk. So my advice when using them is simple: don’t. And if you feel like you have to, remember those basics that I’ve been preaching from day one. Do not talk to anyone without a lawyer and do not admit anything to anyone.

07/19/2023

And the new sign is up!!! Come by 7361 McWhorter Place in Annandale to say hello

07/01/2023

Big news from the Law Office of Guy F. White!! I have moved my office from Manassas to Annandale, Virginia. A couple of months ago, my wife and I found a pleasant little house in Annandale and discovered that we like it very much. So when my lease expired in Manassas and a great opportunity showed up in Annandale, I jumped at it.

My wife and I are "all in" on Annandale. It's a charming little village. We found our Chinese restaurant, we have our pizza place, and we found a Mexican joint we really like. We haven't gone to El Bowlero yet, but it's on our list. We have our eyes on the Episcopal church down the street and there's even an extremely cool sports memorabilia shop on Columbia Pike.

On Memorial Day, a local realtor placed an American flag on the front yard of every house in the subdivision. It was a beautiful sight. Finally, I had to smile the other day when I saw a red fox trotting across my backyard -- loved it. No doubt, I'm going to like it here.

So stop on by and say hello if you're in the neighborhood. My new office is on 7361 McWhorter Place #322 -- about a block South of Little River Turnpike and Annandale Road. I don't have my shingle up yet and some of my stuff is still in boxes, but I would love to see you.

04/26/2023

I like public defenders. I have known hundreds of them in my career and to an individual I have found them to be conscientious, diligent, likeable, and almost fanatical when it comes to defending their clients’ Constitutional rights. Some of them are among my best friends. But they all suffer from the same affliction: they are swamped with cases. All of them. All the time. The consequences of that problem can raise its ugly head in some unanticipated ways.

Back in the fall, nine college students were all charged with a trespass. Pretty harmless really. Four of the nine hired me to represent them; at least one of the other five were represented by a public defender. I strongly suspect that after the first court appearance, the public defender said to the prosecutor, “What do you want to do about those trespass cases?”

“Oh I don’t know. How about 50 hours of community service with a dismissal at the end?”

“Sounds about right”

The entire conversation probably took about five seconds. The public defender then later went to his client who readily agreed to the offer after ten seconds upon hearing the word “dismissal.” The entire “negotiations” probably took a total of about 15 seconds.
I do not know for an absolute fact that these conversations took place because I wasn’t there. But I participated in this type of haggling thousands of times in my years as a prosecutor. They happen not because the public defender is dismissive of his client in any way, but because he has to. His caseload is so large that he cannot devote a lot of time to something as routine as this trespass. You gotta move things along.

In my opinion, 50 hours of community service under these circumstances is excessive. They hopped a fence for goodness’ sake. Come on. These kids have never been in trouble before, they have final exams coming up and it’s actually kind of silly that the charges were filed at all.

I spent a lot of time going over the facts and the applicable statutes with each of the four and their parents. I told them that I didn’t think the Commonwealth could prove its case and I told them why. I was optimistic that I could get the prosecutor to agree with me and dismiss the case on the date it was set for trial, which was last week. Because that’s what prosecutors should do: if you believe that you can’t win a case, you’re supposed to boot it.

But I hit a bit of a roadblock when I tried to make the prosecutor see things my way before trial. See, she was under orders from higher up, to treat all nine co-defendants equally – namely they’re all to get 50 hours of community service with a dismissal upon completion. No matter what.

Nevertheless, I persisted.

“They’re really good kids (referring to my four), they’ve never been in trouble, and they don’t want these charges on their record.”

“I don’t doubt it. But one of the other five already accepted 50 hours of community service”

“They’re already terrified. They’ve all been chewed out by their parents. They’ve been chewed out by me. They’ll probably be chewed out by the judge. They’ve had to retain me. I’d say you got your pound of flesh”

“I couldn’t agree more”

“They haven’t done anything wrong really. Hell, that was nothing to stuff you and I probably did in college.”

“Ha, you’re preaching to the choir on that one”

“Furthermore, I’m pretty sure I would beat you at trial (reaching for my heavy artillery).”

“Yeah, probably”

“Then why don’t you just boot these cases”

“Because my boss insists that all nine of these co-defendants are to be treated the same and nobody gets a better deal because he has the money to hire a lawyer than the ones who don’t have money and are represented by a public defender.”

So I had to report the following options to my four clients and their parents. We could take the 50 community service hours and the certain dismissal, or we could go to trial and to for the *almost* certain dismissal. To a man, they all grabbed the community service hours since none of them wanted to risk a conviction and having to answer “Yes” when a job application asks them if they’ve ever been convicted. I was chomping at the bit to go to trial, but I can’t say I blame them.

What bothers me is this horrible sense that all of the nine co-defendants’ futures were determined by 15 seconds of almost flippant “negotiations” between an overworked public defender and a prosecutor, almost like they flipped a coin – although I know they didn’t. Again, I wasn’t there so I can’t say what happened for sure, but I’ve been in these trenches more often than I will ever be able to count and I know how it goes. You do what you have to do to move cases along. I get it.

But I can’t help thinking that there’s got to be a better way.

03/18/2023

https://commons.wikimedia.org/wiki/File:Clarence_Earl_Gideon.jpg #/media/File:Clarence_Earl_Gideon.jpg

Today is a very important anniversary. It is the 60th anniversary of one of the Supreme Court's greatest landmark decisions. In 1961, Clarence Gideon was sort of a low life drifter who got arrested for breaking into a bar in Florida. After pleading not guilty, Clarence told the judge that he couldn't afford a lawyer. Well that was too bad, the judge said, he would just have to represent himself.

He did. And he got creamed.

While in prison, Clarence started hanging out at the prison library and learned about the Sixth Amendment: "In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defense." So Clarence got out a sheet of paper and hand-wrote an appeal to the US Supreme Court, and amazingly, the Supreme Court granted his appeal.

The earth-shattering case of Gideon v. Wainwright 372 U.S. 335 released on March 18, 1963, held unanimously that if a criminal defendant could not afford a lawyer, it was incumbent on the court to use public funds to provide him one at no expense to the defendant. Courts have had to provide lawyers to defendants in federal cases and in capital punishment cases before. But, Gideon, spread that protection across the board to all the states.

Huge.

Possibly the biggest ramification of this decision was that all of a sudden there needed to be lawyers around to represent these poor people and somehow someone needed to pay them. For the first time, on a large scale, taxpayers were being called upon to spend their tax dollars on representing criminals. These criminals offended the rules of society and somehow society had to pay for their defense? It didn't go over well.

Nevertheless, "public defender" (PD) offices started to pop up around the country. Soon, these public defenders inevitably found themselves quickly swamped with indigent defense cases where the PDs didn't have the time or resources needed to devote to their ever-increasing caseloads. So in some states, courts put a limit on the number of cases that any PD could have, which in turn lead to the public defenders needing more and more lawyers once these limits were met or even trampled, which meant more and more taxpayer dollars going to defend criminals, which is still not going over very well. The PD system is even further strained by the influx or illegal immigrants, which calls for even more lawyers as well as interpreters who need to be legally trained -- all who need to be paid by public funds. Sometimes, these poor defendants need experts to testify on their behalf, and those experts don't come cheaply so again, the experts would have to be paid with public funds.

I am very proud that to our country's credit, we continue to pay that bill. Maybe it's because we have taken to heart Justice Hugo Black's opinion in Griffin v. Illinois 351 U.S. 12 (1956), "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." This quote is hanging on the walls of almost every PD office around the country. It's a noble credo that proclaims that in the United States, here we treat you fairly no matter your wealth, faith, race, s*x, creed, immigration status, or anything else, but because you're a person with rights given to you by God. I strive to meet this standard with all of my clients, every day.

In 1963, Clarence got a new trial where he was represented by a lawyer. He was found not guilty pretty quickly.

By the way, Henry Fonda does a pretty good job playing Clarence in the 1980 movie "Gideon's Trumpet." Check it out.

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