SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia Criminal Defense and DUI Lawyer, Jonathan Kemitz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_02 0:33

Hello, everybody. This is John Katz at Beat the Prosecution. I'm a lawyer in Northern Virginia practicing criminal defense and DWI defense. I know I tell you this all the time about how excited I am about the guests I have, but this is one of the toppers of the toppers. This is Lisa Wayne. She's one of my heroes. She's one of the first teachers I met when I was doing uh switched to criminal defense in the early 1990s. She is a great person, a great trial law, and so generous of her time in teaching us how to beat the prosecution. And uh now she's been the executive director of the National Association of Criminal Defense Lords. Lisa Wayne, thank you so much for being here after we've been doing all these uh scheduling efforts. Please introduce yourself to the audience.

SPEAKER_01 1:23

Hi, John. Um, thank you for having me. And that was a very, very generous um introduction, and I appreciate it. I think I don't need to say anything else. I got to live up to that introduction.

SPEAKER_02 1:35

Lisa, you are my hero. Uh my gosh. I remember when you were um were here in town around 1992 uh for one of the local state uh criminal defense lawyers groups annual meeting, and you got right in front of there and you said, we have to try more of these cases. And you said about how uh over in Colorado that was uh uh just as strict, apparently, if not stricter, on mandatory minimum sentencing and harshness of sentencing. If you got found guilty of drugs, for instance, and you just went right into it to help uh dispel this discomfort and fears of the jury, uh, for instance, about okay, you're concerned about a gram of cocaine, whether it's powder or crack. Well, here's I'm gonna show you a gram here, and and you show and you talked about how, you know, one sugar packet, that's just a gram of uh sugar. And you said, okay, if we're gonna defend someone charged with sexual assault, with rape, uh get right to it at the motions hearing, and have the uh and and have the complainant, uh, the alleged victim uh describe the the attacker attacker's penis because so many people uh lie about it, whether it was circumcised or not, marks on it, the size of the whole thing. Lisa, you are my hero. Please tell us how you came to criminal defense, how you came over to Colorado, and what made you decide to become executive director of uh the National Association of Criminal Defense Lawyers?

SPEAKER_01 3:08

Well, I'll start with the first question about why I became a criminal defense lawyer. That's an easy one for me. I was inspired by my great-aunt, um, who was a very um big Perry Mason watcher. Um and Perry Mason was the defense lawyer before our time, but that was the big defense lawyer, and she watched that show all the time. And I I just loved that show. Um, I just thought Perry Mason was everything there could be in terms of really protecting clients and being advocates for people that needed to have advocates in the courtroom. I also was a Nancy Drew fan, uh, believe it or not. And you know, Nancy Drew was always solving the crime, and she and her two partners, Beth, and I can't remember the other woman. Um, yeah, um, I loved that kind of stuff. And I also came from a family that was very um involved during the civil rights movement, and I was raised to be someone who really was invested in um having giving a voice to the underdog. So it was kind of a natural thing for me to become a defense lawyer, and I love it, and I'm grateful that I got to do that. Um I got to Colorado Springs. My father was an officer in the Air Force, and he was a professor at the Air Force Academy, which is in Colorado Springs, Colorado. And that's where we settled. That's where I went to junior high and high school. And um, you know, Colorado became home for me. Um, went to college in Colorado, went to law school in California, and then came back to Colorado because I knew that the Colorado Public Defender System was tatted as being one of the best public defender systems in the country. Um, and it is, still is, and it was then, and I was bound and determined to be a public defender in Colorado.

SPEAKER_02 5:06

And at some point, did you become the training director of the Colorado Public Defender's Office?

SPEAKER_01 5:12

Yes, I I was a um lawyer in Denver. I started out in Denver. Um ultimately I was a um was I went to Pueblo. I got to go to Pueblo for a couple of years. While I was a young public defender, they had a um a peak, I guess, a spike, I should say, in murders in Pueblo, which was very unusual. There were 12 murders like in a year, and they sent me down there to try murder cases. I ultimately became head of that office. Um, and I was in Pueblo for a few years, came back to Denver, was training director, senior trial attorney. Um, you know, I did a lot of work within the public defender system.

SPEAKER_02 5:55

Okay, so you're a dynamite laura who was a training director there. And I understand Larry Posner was training director at some point before you. He's a dynamite laureate. And was Sunwolf part of that lineage?

SPEAKER_01 6:07

And I think first of all, that was way before me. Thank you, Jonathan. Um, but yes, pause was out of the Colorado system, um, who is a very good friend, who, you know, that is the way to cross-examine. We all know that is the it should be called pause examination. Um, and Sunwolf was also part of that class, and I owe a lot to her. She was and is a was a tremendous mentor to so many lawyers, taught most of us. Um, you know, they call it the Colorado jury selection, but it really was the Sunwolf way. And so much of how I was in the courtroom was based upon her mentoring and her training. And she started the boot camp, is what it was called. So in Colorado, when you became a new baby public defender, you had to go through boot camp, which was a two-week training. You were on probation until you passed boot camp. And it was intense. And you had people like David Wymore, David Eisner, Sunwolf. I mean, they were the people who had to pass you through boot camp. So it was as stressful as any trial could ever be.

SPEAKER_02 7:18

Wow. Well, you know, I got to know you and Sunwolf better over the National Criminse College Trial Practice Institute when it was over the airport in Atlanta in uh in summer of 1994. It was amazing that they even uh had it over there because it was a lot more expensive than just having it at Mercer Law School, but that was hurricane out. And uh you were one of the instructors uh for my section one day, and uh Sunwolf wasn't one of my son uh instructor instructors there, uh, but I still remember uh one of her phrases that stuck with me and continues to stick with me for the rest of my life, which is reality is no obstacle.

SPEAKER_01 8:03

Yeah, she's she's tremendous. She is you know a tenured professor in Santa Clara, still doing a lot of social psychology. I stay in touch with her. She still gives me these incredible um gifts for trial practice that I continue to preach. So she's everything.

SPEAKER_02 8:23

And the thing that impressed me most about you during the National Criminal Defense College, I forget if it was the opening or closing where you did first person of uh that woman with the battered uh spouse or or batter women.

SPEAKER_01 8:38

They still have that problem. Um, Bonnie Kitchens. Um, but they have they've changed it, they've tweaked it, and it's evolved over time. We are now, um, for the last few years, we've actually been in Virginia. Um they've moved around a lot. After Darrell, the great Daryl Dansler um passed. Um, we didn't have much of a home and they had to move around a lot. Um, they are looking for another home, but the child the National Criminal Defense College continues to thrive despite the fact that they've had to move around a lot.

SPEAKER_02 9:12

And to what extent are you still teaching these CLEs?

SPEAKER_01 9:17

I still teach once in a while. You know, I don't have the same amount of time, Jonathan, that I used to have. Um, but I still will come in on programs. And honestly, I hope this doesn't get out, but when PD offices call me, I can't say no. I just feel beholden to my roots, no matter where I have to go. If it's I just got one from the wonderful Travis Fink, who's out of North Dakota. It's North Dakota or South Dakota, he's gonna kill me, but it's the Dakotas. And he said, Can you come here um next year? And I was like, Oh, do I want to go? And I gotta go because it's Travis and they need us in those places. So I'm still doing it.

SPEAKER_02 9:58

Um, so in uh the intro to Sun Wolf's uh practical jury dynamics, at least in the first edition, she paid uh honor to you saying Lisa Wayne loves her jurors and they love her back.

SPEAKER_01 10:13

I know that was I was so shocked when I saw that. That was quite the honor, quite the honor. Um, yeah, so I love jury selection. It is my favorite part of trial, although opening's pretty close. I I love opening as well. Um, and I love jury selection because it's the unscripted part of the case. Everything else you should know if you're prepared will happen in court. Now, things happen, you know, the drugs get lost, somebody says something on the stand that is completely out of, you know, left field. I mean, there are things that happen, but in terms of your theory, your theme, your crosses, your directs, you know those. You you have those prepared. But jury selection is unscripted. It is, and that's why I love it, because I love talking to people and finding out what they are about. Um, so you got to be a people person. Right. You gotta love to talk to people. If you don't, you're never gonna be a very good trial lawyer.

SPEAKER_02 11:16

Well, sitting next to you at the time when I first mentioned and last mentioned this to you at uh an NACDL quarterly meeting in DC around 2012 or 2013, uh, was a member who now is a judge. And uh she said, Well, of course, as if that's second nature, but it is in our head. But uh only not every criminal defense lawyer can really love their jurors, really felt feel the love for the jurors and have the jurors love them. So, what is your secret for that, Lisa? Because I have to imagine that not every juror you appear in front of is uh is favorable to you, at least in the beginning, and not everyone is gonna uh vote not guilty for your clients.

SPEAKER_01 11:59

Absolutely. I mean, look, um I in my career have represented um some very, very serious um accusations, and most of the time they don't want my client or what the case is about. And generally there are a lot of bad facts. I think the reason that I like jury selection so much is that I learned early on to embrace the bad facts or what the government or prosecutor, the state believe were the bad facts or good facts for them, and make them my own, turn them around, um, integrate them into my defense, um, make it credible and honest and talk to the jury in that way, and find out who could never be open to the theory of your case, who are the jurors that you are not there to educate people or change their minds. You're there to find out who cannot be open to the theory of your case. And that's why it becomes easy. I think jurors appreciate that you are not trying to trick them, that you are being honest with them. You be, you know, your credibility is everything. And, you know, that really is the lesson is that you have to come out of that uh off of your high horse as a lawyer and just really get down and dirty sometimes with what's going on in the case and um getting that credibility. It's all about um making sure you have credibility.

SPEAKER_02 13:32

Lisa, do you ever get stage fright in court or anywhere else? And if so, what do you do for that?

SPEAKER_01 13:38

I am nervous every time I um start a trial. I mean, you have people's lives in your hands. Um, so if you're not nervous, you ought to get out of the practice, as far as I'm concerned. Really. Um, I'm nervous no matter what it is, from a misdemeanor to you know, a life case. And um the people are entrusting you to tell their story and get to a fair place. And so you just never know what can happen. And so, yeah, I always have butterflies um in my stomach when I get up in front of a jury and I can't I can't imagine feeling so slick, slick Rick, that I'm like, oh, I got it, I got this, no matter how good a case I think I have. In fact, I don't want to have a good case, I'd rather have a bad case.

SPEAKER_02 14:24

Exactly. Well, okay, so I haven't seen you in court. I've only seen you in front of your uh fellow criminal defense lawyers. So do you not get stage fright when you're in front of your own? Oh my gosh, that's what the worst, John.

SPEAKER_01 14:36

You know that I mean, we're the worst because lawyers are so critical of other lawyers. So absolutely, when I'm standing up in front of a crowd, I'm like, oh, I know there's some people that are gonna give me a one or gonna be critical about something I said or offended by something I did. And you have to just get over that. I mean, you just have to speak your truth. And I think the older you get, the wiser you become, the less you care about people criticizing you and you and the easier it is to speak your truth. And for me, you know, it's it's a no-brainer at this point. But yes, I still get nervous. Absolutely.

SPEAKER_02 15:14

Okay, so either I'm stupid or else you're bullion or both. Why have I never noticed stage fright in you during your brilliant presentations? And if uh and and what are you doing for people not to notice it so much?

SPEAKER_01 15:27

That's so that's nice of you to say. So you probably know I come out and I usually I have nothing prepared for that first remark, and I really believe in primacy and recency for speaking as well. What I say first, what I say last, that's all anybody remembers. And generally I come out with something personal about the flight that came in, or something that I'm wearing, or something that might have just happened, or something that someone the staff at the hotel said to me. And I tell that kind of story, and I think it's that kind of personalizing, whatever it is, that people relate to and they say, Oh, and it warms me up. Um, most of the time it lands, sometimes it doesn't. And the audience is like, that wasn't funny, and that's actually funny to me because I recognize I'm very good at reading my audience, and I'll go, okay, that didn't go well, Lisa. And I might say, that didn't go well. Have you ever been in front of a jury where that didn't go well?

SPEAKER_03 16:30

Yes, right?

SPEAKER_01 16:32

So, yeah.

SPEAKER_02 16:34

How successful have you been to convince your colleagues to take more cases to trial and not be so uh uh so trigger happy and encouraging their clients to plead guilty? I mean, of course, it's our it's our obligation to do as little harm as possible for our clients, but I think too many of my clients are shortchanging, sorry, too many of my colleagues are shortchanging their clients uh not not to talk to them about the possibilities with trial.

SPEAKER_01 17:02

It's a complicated and layered issue, John. So I will tell you that Colorado, um, the state public defenders, I went to trial all the time. I think it it depends on the state. I think it depends on how resourced your local public defenders' offices may or may not be, how trained the lawyers are. So all of that matters. The federal system can it can be so much more punitive. So we know that we have minimum mandatories in the feds. 97% of cases in the federal system plead out, meaning people are not going to trial in the federal system. Um, and again, that is geographic because you have some jurisdictions that there are lawyers. So in New Orleans, in that circuit, that that federal office goes to trial a lot. They charge a lot of crimes and a lot of violent crimes in New Orleans, and those federal defenders are in trial like state defenders. So it really depends. But the best thing about encouraging folks to go to trial is that it's trial experience that allows you to thumb your nose up at amendment. So I have much more um confidence when a when a prosecutor or an AUSA says to me, you know, your client, if you go to trial, is gonna get such and such. And I look at the case and go, but you've got some real weaknesses. Yes. So I may win this, not only at motions, but I'm gonna kick your butt in trial. But that takes experience, right? That the sense of I know a case. And if young lawyers aren't getting that experience, then they're never gonna feel that way and they're not gonna go to trial, John. They're gonna be afraid. So, how are they gonna get that experience? That's why being in a public defender system or being in a private practice office, I think um just you can't pay for the experience that you get um in these offices. So if you don't go into a public defender system or if you don't have one, then I suggest that you look around and there are law offices um all around the country. And John, I know you did DUIs. DUIs used to go to trial a lot, but I know a lot of DUI lawyers who had a number of associates because those cases did get tried. That was trial experience. They litigated interesting things. You all were in, you know, you were doing drug um testing and all of that way before we were doing it because you all were doing it in the trenches of DUI cases. Um look for those kinds of offices. Go to a DA's office. I mean, look, I'm a total defense lawyer, 100%. Everybody knows that about me. Yeah, but there are a lot of us who were in the DA's office before we saw the light and went to the other side, even Tony Sarah for a few months. I mean, yeah, and I I will forgive you once you redeem yourself with a number of not guilty, okay? Um, and you can join in ACDL.

SPEAKER_02 20:17

Well, I I okay, now I'm gonna mention any my early experience with an ACDL and how I got into criminal defense, and it includes you mentioned uh New Orleans, I think. It goes to New Orleans. So I left uh when I finished uh law school, I continued with the uh 25 lawyer corporate law firm in DC I was at. And uh although it wasn't nearly as exciting as the work I do as a criminal defense lawyer, uh as a criminal defense lawyer, I had some great mentors there. And uh one day I was reading the index on censorship that I subscribed to, and there was a little blur about how the New Orleans chief federal prosecutor had uh issued a uh subpoena for the advertising records of um the uh High Times magazine. This was around 1990. That pissed me off to no end. So, in uh in opposition, I uh took out a subscription to High Times and I sent a letter out to Dick Thornburg, who was attorney general at the time, who I ended up meeting a couple times later with, and we got along great, and uh also to High Times saying what I was doing. And in there was a a big article in High Times soon after that about uh normal with Don Fiddler, who was then the national director.

SPEAKER_01 21:36

Yeah.

SPEAKER_02 21:37

And uh long story short, I broke bread with Don Fiddler a few months later. I asked him how to become a uh criminal defense lawyer. He told me about public defender, uh, the public defender option and joined the uh NACDL and go to the National Criminal Defense College within a year or a year and a half. I was a state public defender for five years. Trying a bunch of cases, winning a lot of them. And of course, you know, like wide world of sports, the thrill of victory, the agony of defeat as well. Found out that uh it's easy, at least at the time it was easier to get into the National Criminal Defense College as a private practicing lawyer than as a public defender lawyer. But still I got in. And uh I'm just so I'm so happy for all those times, not for my clients, but for me, when prosecutors would not deal reasonably and when I had to go to trial. And there's been this whole sweep into Northern Virginia Lisa, uh not in Loudoun County, ever since the more conservative prosecutor took back hold. But there's just been this whole sweep of new chief prosecutors in Northern Virginia that's uh making fewer cases go to trial because there's better deals going on. So I asked myself, you know, I don't want to hex myself, why are some of these prosecutors not just being a little more firm with negotiations so they can get more trial experience? Interesting.

SPEAKER_01 23:03

Now, on top of the you know, they do a triage to the other side does. I mean, and look, John, I mean, you know, give yourself credit. It also is a situation where over time we get reputations, and that's the nice thing about law practice is that you know you can practice for quite some time, you get a good reputation. And I know that you know, when a prosecutor saw me on a case, they were like, Oh my god, what a pain in the ass this is gonna be. And you know, and they did, I got I got great deals, I know that. Um, and that is what you get you and that is reflected in your fee agreements because you you deserve that higher rate because you do have a reputation and you got to pay for that. And and so oftentimes that would happen. But, you know, it was interesting because yesterday I was at On the Hill with Kyla Dodd, who is our deputy policy director here at NACDL, and this trial penalty bill, which is a bipartisan bill. And there was a um ex-prosecutor on the panel, and she was talking about how fair she was, of course, because she was on this panel, but she ended up saying, but there are these cases that as a prosecutor, you have to never give, ever give deals on. And so I said, What what what cases are you talking about? She goes, any case that involved allegations of sex abuse on a child. She said, My my position was no offers. Well, I was sitting in the audience going, that is so ridiculous. Because not only do we know that you cannot have a con you know a mandate on certain allegations, but we also know that sex assault cases are some of the cases where you have the most innocent people.

SPEAKER_02 24:51

Yes.

SPEAKER_01 24:52

And so you're gonna tell us that these are the cases that are never gonna be offered. So I thought to myself, it's just this different way that you look at the world, John. It's a different perspective, and we are cut from different cloths.

SPEAKER_02 25:07

Right. Well, I'm happy that I'm not the only one who's referred to as a pain of the ass, but actually, that helps me a lot. Uh, Mrs. Drummond was my fifth and sixth grade uh elementary school teacher, and every uh month or two she would say to me, Jonathan, don't be irritating. I didn't realize at the time that that would help me a lot as a criminal defense lawyer.

SPEAKER_01 25:29

So there was a it's a badge of honor, right?

SPEAKER_02 25:32

There was a lawyer who left the prosecutor's office in a nearby county, and he said to me, gee, John, we would sometimes talk about the lawyers we were going up against for the day. And when someone said, I'm going up against John Katz, the rest of us would say, How did you draw the short straw?

SPEAKER_01 25:47

Well, that's I think that's a badge of honor. And the bottom line is people would say to me, Were you ever friends with the prosecutor? I was like, Well, why would I have been? And here's what happens I get in small counties, it can be difficult, but I just never was. I was friendly to them. I, you know, I was respectful if they had earned my respect. But when you got that case where there was a call where they didn't disclose something or sat on something they should have told you, do you err on the side of friendship or do you be are you an advocate for your client? And I never wanted to be in that position, Jonathan, and I never was. So you've never been uh close friends with the prosecutor you've had cases against? Never, not while they were prosecutors. I've become friends with people who are ex-prosecutors.

SPEAKER_02 26:38

You know, I've never been a close friend with the person I've had cases against either. Uh an office mate I had the public defender's office, who's as hilarious as hell. I forgave him for it, that he uh he had to move out of state for a personal obligation. I'm not gonna uh get into too many details to tie to him, but he ended up doing uh death penalty appellate work for the prosecutor's office. And he said to me one day, Did you read that um that brief that I sent you that I did? It's a masterpiece. I said, I'm not gonna read your brief. He said, Why not? I said, You need to understand something. If you had been a uh a death penalty appellate prosecutor before uh before I first knew you, I never would have become friends with you. I've stayed friends with you because I don't have cases against you, and I understand the human you are.

SPEAKER_01 27:36

How can you say something to kill somebody is a masterpiece? I that's just so unbelievable.

SPEAKER_02 27:43

Anyway, it was it was an anti-masterpiece. Lisa, have you ever experienced this? I mean, I've actually had uh lawyers look at me cross-eyed like I'm crazy, that on a beautiful uh Friday afternoon, if I've got a misdemeanor case in bench trial for it, that I'm gonna go to trial rather than go to the golf course or tennis court early on. And and the way, you know, that I uh I have to uh I have to use a lot of self-control and I'm successful at it, uh, not to then brag to them about when I win the case. But an example I have here is a lawyer that I otherwise very much respected up until then. He's a very well-known criminal defense lawyer. I said to him, you know, how do I get the prosecutor to give me a better, uh agree to a better negotiation? This is going to help my guy's uh immigration situation. This was when marijuana was still legal to possess in Virginia, then getting what's called a 251 disposition, which is ultimately to get the case dismissed, but for the immigration authorities to treat as a conviction. He said to me, Well, just do it. Well, you know, why why are you not doing it? And he he really got angry at me. So I went to trial with my client. He had an F1 student visa. My former law partner at the time, Jay Marks, great person, a great lawyer, said to me, John, you know, his his student visa is gonna be screwed over, even if he get that 251 disposition. And uh down the tubes, I thought went my chance of winning when the judge wouldn't suppress the uh the search of the car. The cop stopped my client's car for speeding, and he said, My client seemed to throw some, uh, do a suspicious hand throwing motion. And so the cop looked at what was in the back and pitched dark with his flashlight, and the judge wouldn't suppress that. So get this, Lisa. During my closing argument, I said to the judge, Well, judge, I'd have a lot more to argue if you had suppressed the evidence. Of course, you wouldn't even be here then. And all of a sudden, it was like a light bulb went off in the judge's head. This was not a liberal by any stretch of the imagination. And he said, One second, Mr. Katz, you're right. I should have suppressed the search. I do suppress it. I find your client not guilty, and then without skipping a beat, this part I don't like. Have you had this happen before, Lisa? After the judge finds your client not guilty or dismissed it and starts selecting your client, and he points my his finger at my client and he says, Don't think you got off easy. I know you got a drug problem. A gram of marijuana, a drug problem.

SPEAKER_01 30:16

No, I've never had that particular situation. And, you know, at the end of the day, you know, laugh and walk out, walk out. I mean, it's like, really, Judge. Um, you know, maybe they he felt he had to justify what he had done somehow. You know, you know, I judges are human beings, I guess.

SPEAKER_02 30:40

To tie that together, my client, as we walked to our mutual cars, kept asking me, Who are you? Who are you? And I knew that he was uh uh a very religious person going to church all the time. And I said, Well, I mean, I'm Jewish, so I don't know if I'm an angel sent here or whatever. And he said he was from Korea. He said, Can I bow to you? I said, sure, I wish I had my camera to take a picture of that. But I mean, I'm not saying all this to congratulate myself, but Lisa, I mean, I agree with you 100%. We've got to try these cases, we can't be fearful of it. And and there are too many lawyers uh walking around. Uh he was a civil lawyer granted, doing uh civil defense for a personal injury case, said to me, John, you're making a lot more money at the office than in court. Lisa, I didn't become a trial to be in the office.

SPEAKER_01 31:32

Yeah, I I I agree with that. And you know, look, uh again, if you're not in it for some kind of um, you know, you got to have some feeling about what you're doing or some passion about it, at least if you're gonna stay it in in the long run. I mean, I don't know. I I would think you'd be a fairly unhappy person and you're not doing anybody any good. Yeah, but I don't know, John. I mean, people have to find their own, you know, way in the law, and that may is not always easy for everyone.

SPEAKER_02 32:07

So Washington, D.C. is a whole lot different than Colorado, and my faith, two of my favorite parts of Colorado Springs are, of course, uh Pike's Peak in that very challenging ride up, and uh the Garden of the Gods. Uh, so what a difference it is here. So um what's the first one?

SPEAKER_01 32:24

Well, just to be clear, I lived in Boulder, um, which is not Colorado Springs by any means. Okay. But I rarely go back unless I have to. It's a beautiful place on the outside, but you know, it's a very conservative military town. Yeah. Um, but Colorado's beautiful, and I miss Colorado, but I hadn't met when I married um my husband Martin, we our home is you know California. Um, but DC is a great city, and it's the city of too many lawyers. Everybody's a lawyer in DC. A lot of gray and black suits walking around.

SPEAKER_02 33:05

Right. Oh, so now, okay, so what I was then looping into is what you're doing with NACDL, but I didn't loop it into my experience with NACDL, which is that uh Don Fedler uh sponsored my application. I don't know if they would have to be a little bit more.

SPEAKER_01 33:19

A wonderful man, great lawyer.

SPEAKER_02 33:21

Amazing. And my first meeting was the Philadelphia Quarterly Meeting in the spring of 1991. Uh it it was just amazing, Lisa. Even some of the most famous and sought-after lawyers, David Lewis, etc., were so supportive of my telling, look, I want to become a criminal defense lawyer, I want to become a criminal defense lawyer. Uh within three or four months, I started with uh uh the public defender's office in Maryland. And uh just to think, you know, giants like you and and and Bob Ritchie and David Lewis and Gerald Lovecourt, and I can go on and on and on, and uh Jack Littman, I could just walk right up to them and say, look, here's an issue I've got with a case. Here's an issue I've got about uh planning my uh my going back into private practice and being my own boss and in that support system. It was just amazing. Yeah. What are you doing with NACDL and what are some of the key projects you're working on?

SPEAKER_01 34:27

Well, like you, I'd been a member of this organization for a long time. I joined it as a public defender. I went to the National Criminal Defense College like you did. In those days, it was just a normal process. You went to the college and then you became an NACDL member. You went to the CLEs are the best and continue to be the best. And the networking, like you said, meeting lawyers and you know, rubbing elbows with these greats was just so inspiring to me. And it was it was real, genuine affection uh in terms of mentoring um that you just didn't see in other organizations. You know, there are a lot of great bar organizations, but this was really home for me as a defense lawyer. It's really where true believers kind of hung out, right? And just hearing the stories, um, John, you know, all the great trial stories. And I I so enjoyed it. So I got involved with committee work pretty early on. It was at that time called um the Women and Diversity Committee, because there were very few women that were involved in the organization, very few women that were in the um, you know, that were really part of being def the defense world. It's very different now. I mean, more than half the um law schools, it's the majority of them are women in law school now, but it wasn't that way when I started. And unfortunately, it's still not that way in federal court. There aren't enough women. But we're getting there slowly but surely. And so this organization was doing really good work. So it wasn't just about networking, it was about the policy changes we wanted to make on a global level. Things that affected the defense bar around the country, not just in my state, laws that affected the accused around the country, not just in my state. And so it gave an opportunity to have a broader, richer, um, more meaningful voice. So I worked on committees, um, I did a lot of work. I started lecturing for the organization, um, and then ultimately came up the officer track. I was president of the organization. I became a trustee on the fundraiser arm of this organization, which is the foundation, which um is the reason we are able to do a lot of the projects we can do. And then sat on the first selection committee that couldn't, nobody was very happy about, you know, about about what they felt should be a representative of this organization in terms of you know who was going to take us forward. And I just a lot of people came to me and said, why don't you do it? You're perfect. And I never thought about it ever. This is not what I I thought I would be, you know, running my office, which I loved by the way, until I stepped into it, fell into the grave, I should say. And it's great. Um, it worked out, and um, it is a new chapter for me. And so we are doing a lot of great work, the recruitment, it's a very different looking organization today than it was 20, 25 years ago.

SPEAKER_02 37:56

Uh excellent. And uh, what are some of your uh favorite projects right now with the NACDL beyond the CLEs?

SPEAKER_01 38:06

Well, I will tell you, first of all, the Fourth Amendment surveillance um thing that we are the conference, not thing, the conference that we're holding right now at Georgetown is remarkable. The top experts around the country talking about surveillance, digital tools, um, facial recognition, the algorithms that they're using, genetic genealogy. Forensics is the key to defending cases in our time. And the Fourth Amendment Center and the lawyers that are part of that, who are employees of NACDL, are really at the top, and we're doing strategic litigation around the country. We did a case in Virginia where we partner up with the public defenders or private counsel on and come in as experts on these cases and really help, you know, really back these cases that are new, geofense. So that's great to me. Um, after Dobbs dropped, um, we recognize that here we go again, overcriminalization for constitutional conduct that has been constitutional and allowed in this country. We are now going to be criminalizing reproductive health care. And so that was a big deal for me coming into this space. I never, ever thought that this is how I would what I would be teaching lawyers to do is to have to represent women accused of making what was once a choice, now a criminal act. And so we have been doing a lot of training. We have a Georgetown conference set um December the 5th that is called policing pregnancy, which is policing women, healthcare providers, friends, your complicitors, conspirators, um, the pharmacists, every all of it. And let me tell you, we've had an outpouring of some people feel like this is not our space.

unknown 40:03

Yeah.

SPEAKER_01 40:04

And I vehemently disagree because this is not a political position that we are taking. We have always made sure our lawyers defend the accused the most effectively they can under the Sixth Amendment, regardless of what the accusation is. You don't have to agree with it. Last time I checked, Jonathan, you and I don't agree with people who are accused of murder or sexual abuse, but I sure in the heck am I going to stand there against the government and be an advocate on behalf of my client because that's the Constitution of the United States. So that's one of the projects I really believe in. We have a trial penalty bill that's pending finally. We're hopeful to get that through Congress that's talking about what you and I were talking about earlier, and not penalizing people to get more time if they exercise their constitutional right to challenge the government and go to trial. That's a big deal. And then something that is close to my heart, and that is public defense. And you own Bonnie Hoffman from Virginia for public defense, and she is remarkable. She has traveled this country to places that nobody else goes to under our grants that we have received to train lawyers that have no resources, that nobody cares about, that nobody goes in and trains, and Bonnie has been um has their back, and obviously I care about that a lot. So those are some of the things that we have been doing.

SPEAKER_02 41:50

Bonnie is great. Uh, she uh was at the Loudoun County Public Defenders. In fact, they got a trial in Loudoun County uh just two days from now. Uh Lisa, to what extent is the NACDL involved in uh advocacy for criminal defense uh internationally?

SPEAKER_01 42:07

So that is a little bit more limited. Um we have a very robust white-collar group, and I hate to call it white-collar because my feeling is you're a criminal lawyer. If you're if you are defending people who are accused of crime, you're it's it's criminal. Um, if it can be tax, it can be fraud, whatever you call it, but that's what we do. We're criminal trial lawyers, but we have a very robust group, and sometimes we will pick up those cases. We see a lot of extradition issues where you have people who are trying to be extradited. I know my husband has actually appeared in London virtually testifying about people who are being extradited. Um, so we do some of that. That's not our biggest thing in white collar. We do a lot of training on white-collar cases, which means these voluminous paper cases that, you know, just try to weigh the lawyers down and how to defend those, how to organize those, how to do e-discovery, all the new tech stuff that's coming out to make it better and more helpful to um lawyers. And then we have an AI task force that um is is newly formed, which is the artificial intelligence, which is the new, you know, that's gonna be the path forward for us. There are lots of good things about AI, and there are lots of bad things that defense lawyers need to be aware of that will impact our cases and your representation.

SPEAKER_02 43:37

Yes. Uh Lisa, what is the longest trial, uh jury trial you've ever had?

SPEAKER_01 43:43

Four and a half months.

SPEAKER_02 43:46

And uh what kind of case was it? And uh was it when you were a public defender, and how did you keep your uh your energy and mojo going?

SPEAKER_01 43:55

It was a CJA case, tax case. Um, and I'll tell You in on those cases, they're so slow going, John, that it's actually to me easier than those hustling through judge pushing you difficult case where you know it's just one bam, bam, bam. These multi-codifendant cases or these drug conspiracies, they're actually much more relaxing because you can go three, four days without doing anything, right? Um, because you have so many other players and so many other lawyers involved. Um, so the energy for me is not as difficult as the case where you are the solo lawyer and you got it all on your back. Um, and it's two or three weeks. Those are the ones that kick your butt to me. Um, and what kept me going was I'm a big outdoor person, I'm a big yoga person, I um spin, I've always tried to stay in shape. I'm a healthy eater. You know, I'm from Colorado, I'm very granola-like. Um and and so that that's helped, but this is a very difficult profession to have a balance in. And we have a very high rate of alcoholism in this profession. We see people dying too early. Um, from, you know, we have so many friends that have passed. And it's because we are all in kind of people, and most of us care so much about the lives of our clients that it weighs us down and our own lives. And we tend not to have good boundaries, and we tend not to be able to have a balance. Um, and I am I don't know why I've been able to push back. There are times I haven't been totally balanced. Let me be clear. But um I'm pretty good, I've been pretty good at the balance, uh, you know.

SPEAKER_02 46:01

So for what helps me a lot there, Lisa, is uh Tai Chi Chuan, which helps me be calm in the eye of the storm. But Tai Chi Chuan does not help us uh uh about dealing with clients. I mean, the the the place that helps us deal with clients is doing the criminal defense. So, yes, those two to three week trials, jury trials, when we're a solo practitioner and small practitioner, uh, that is a lot more of a challenge than when you're a public defender lawyer. So I take it that your long jury trials have included when you were uh just a small practitioner. Can you share with the uh the criminal defense lawyers, private criminal defense lawyers listening how you dealt with that beyond what you've already said?

SPEAKER_01 46:45

Yeah, all my trials, my long, long trials. I'm trying to think when I was a public defender, I had a so I had such a support system. So it just made a big difference. But when I was in private practice, I was with um I was associated of counsel with another firm that did med malpractice and criminal. And my partner, Dan Garash, who is the son of one of the most well-known defense lawyers in the country, um, Walter Garash, who passed in the this last past year. Um, Dan and I had been public defenders together. And so I was associated. I had that backup, and so I had staff. I had the best investigator in the world, Tony Di Virgilio. Without a good investigator, you are you are as good as your investigator in my mind. And I and Tony was there always with me at the front end of every single case that I tried and was just invaluable to me in terms of what he knew, his experience, what he would find out. He was just, it was like having another lawyer. He never wanted to be a lawyer, he was a happy investigator, he was an ex um police officer out of New York. He was the Tony's the best. Um, so I was lucky, and I always had great investigators, I had great paralegals, you know, all of that mattered. So that made it a little easier for me. Yeah.

SPEAKER_02 48:17

Did you uh sometimes find that a challenge to be balancing uh scheduling your your jury trials in multiple jurisdictions and having uh uh judges seem to be deaf-eared when you say to them, hey, you know, my jury trial in County A is unexpectedly going one or two weeks extra. Will you continue my trial in your county B?

SPEAKER_01 48:37

Yeah, you know, they don't care. Um, so I sometimes would lay it at their feet and say, Look, I got two of you. You why don't you talk? You know, federal judges think they take precedent over state judges. And so, okay, but I'm not gonna get in that argument with with the both of you. And, you know, or it was usually double scheduling. So it wasn't that I would be in trial, it was that at the time that judge would want to schedule, I would have something already scheduled and tell the judge, I have this schedule. Too bad, Miss Wayne, I'm scheduling. Okay, well, why don't you tell that judge? Because I'm not so I would put it at their feet because that's not fair to you as a lawyer. And I think one of the things you have to be really um push back with judges is you're not their lawyers, you're not their pieces of furniture to move around at their will. And you have to really push back on that. I think it was harder as a public defender because when you were a public defender, they definitely felt like my public defender, right?

SPEAKER_03 49:40

Yes.

SPEAKER_01 49:41

And so you really had to push back on that. So it's, you know, and that comes from who your supervisors are and making sure you have the support on that, because you can't stand alone and do that.

SPEAKER_02 49:54

Exactly. Well, um, what beyond what you've already talked about is particularly important for you for preparing for trial, uh, beyond the uh the essentials, as Larry Posner tells us about being fully prepared with the paper, knowing the case backwards and forwards. I'm talking about what do you do in your gut? What do you do in your uh in your psyche and your persona uh to really get that oomph between the difference between winning, losing, getting a mistrial, and winning.

SPEAKER_01 50:31

I have no idea what you're even talking about. So, I mean, look, John, every case is so different. Are there certain things I would do? I'm, you know, I'm definitely part of the Larry Posner and Sun Wolf school that says the more organized you are, the better you are. And that starts at the front end. I will tell you something. I think trial prep is miserable. Okay. I hated trial prep. And my last trial that I did in New Orleans, where I represented um, you know, Jason Williams in that tax case, the DA in New Orleans. I hated the months up that led up to that trial because it was a tax case. So it was a voluminous paper case. And it's just that prep is just like, just get me there, just get me in front of that jury, right? And start the darn thing. So I think that's the most miserable part of a trial, but it's the most necessary part. Um, and again, the front end part, I think, is don't wait to the last minute. I think stress is caused by us the way we procrastinate. I don't know, a trial lawyer that is not a procrastinator. It's who we are, it's the nature of who we are, but it causes stress. It causes a lot of stress. So you can't be doing the night before, um, oh, I have a new theme in theory, or oh, I didn't recognize that this you can this could be a bad fact or a good fact. You know, you got to do that way in advance because I've seen so many talented lawyers or lawyers who could be talented in their careers who shoot from the hip. And I'm telling you, you may be immensely talented, gregarious, likable, but shooting from the hip is only going to take you so far. Um, the best lawyers are the best prepared lawyers.

SPEAKER_02 52:19

Um I take it that you've had experiences, perhaps not all of them pleasant, uh, dealing with multiple uh code offense lauras. And uh that's been a challenge for me. Have you had a lot of those jury trials? I have.

SPEAKER_01 52:34

They are challenging, particularly when they're undoing everything that you've done. Um I think what's helped me as I, again, as I got older and more experienced and my reputation, is they would take a back seat more and let you kind of try the case because they realize you actually were the good lawyer in the courtroom. And I so I've had oftentimes some of them bow, just let her do it, just let Lisa go. But as a young lawyer, particularly as a woman, because there is we are seen very different very differently in the courtroom than men, um, it was frustrating for me. And you just had to bite your tongue. And then, you know, at closing argument, just hammer home. There are four different lawyers here. I represent this defendant, not the others, and hammering home, you know, your own defense and your client. So yeah.

SPEAKER_02 53:31

Well, it is uh certainly uh vital that you're a role model uh to not just women lauras, but lawyers in general. I've had Andrea Lyon on the show, and I was just uh I shouldn't have been stunned, but it's a real eye-opener to know that uh that there were so few, not only so few women lauras uh doing criminal defense when she started, uh, but that there was the expectation that when she started doing capital defense that she just wouldn't survive it, that it would just remain uh the men's club.

SPEAKER_01 54:02

Um, there is one of the great.

SPEAKER_02 54:06

Yes. To what extent beyond what you've already talked about, Lisa, are you doing work uh to um even the playing field uh for women, for minorities, for people of color, the the the the whole uh the whole kitten caboodle?

SPEAKER_01 54:21

You know, I just hope that whenever I'm in the room with um and and I'm making sure that they are also going to be in the room with me, but that I'm inspire them and may and they say, um, you know, I want to do what she's doing and be like her. I think that's the greatest compliment that I can receive is that somehow something about me resonates with um these these young women and um young lawyers, and that's that's all you can ask for. Um and that's it, you know, for me.

SPEAKER_02 54:57

Well, Lisa, um this has been a true delight to have you on this show. Uh you are one of my great teachers, and I appreciate it so much. Is there anything that you have not said already that you want the audience to hear about how to beat the prosecution, of course, with the realization that prosecutors are, of course, also listening, though.

SPEAKER_01 55:20

No, I mean the the bottom line is that if you are on this side, um, it is a privilege, and it's a privilege that you shouldn't take lightly. But at the end of the day, you are the modern day saints, and I believe that. And that's how we will go down in history. So don't take it lightly. It's an important job, and the rule of law is being threatened right now, and it's offensive to me, particularly someone who's fought, you know, for the Constitution my whole career. So hopefully um you will all continue to have that fervor to want to keep fighting, just keep fighting.

SPEAKER_02 55:58

Excellent. Well, Lisa, this has been a battery recharge for me. I really appreciate it. Everybody you've heard from Lisa Wayne, one of my best, biggest, and earliest heroes. She's a great woman, a great criminal defense lawyer. She's the executive director of the National Association of Criminal Defense Lawyers. Thank you so much again, Lisa. Thank you, John. This has been John Katza, Beat the Prosecution. I'm a criminal defense and DWI defense lawyer in Fairfax, Northern Virginia. Lisa, please stand by.

SPEAKER_00 56:32

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email info at beatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.