SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, 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 0:31

Hello, everybody. This is John Katz at Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Northern Virginia. It is my delight to have with us today Public Defender Laura Michael Cash, who I first met when he was at the Fairfax Public Defender's Office, and now he's with the Arlington Public Defender's Office. We have interviewed before Brian Kennedy with the Fairfax Public Defender's Office, Shaleb Ben Avraham, and Sean Stout with the Prince William Public Defender's Office. Each county has its unique aspects of practice, so who better to find out about that than the public defenders who tend to be in these courthouses more than anyone else? And also, I just like to talk to the public defenders because they are doing the work that is vital. I was a public defender lawyer myself way back when. Michael Cash, please introduce yourself.

SPEAKER_01 1:29

I'm Michael Cash. I am currently the senior trial attorney at the Arlington and Falls Church Public Defender's Office. Uh you are correct. I started my public defender career out in Fairfax in uh fall of 2014, spent um almost 10 years in Fairfax and just joined the Arlington office uh this past summer. So I am pretty new to the jurisdiction, but um have have picked up a whole lot in the last uh last seven months or so.

SPEAKER_02 1:57

What brought you to law school? Where did you go to law school? And what brought you to the public defender path?

SPEAKER_01 2:03

Sure. Um so I I did my undergraduate at Virginia Tech, um, big hokies fan. Um and sort of in doing my usual, you know, teenager, what am I gonna be when I grow up thing? Um I I just had a kind of a fascination with uh with crime, uh for lack of a better word. Um I I knew that doing something with uh with criminal law, criminal justice was just really what got me excited and thinking about what a career could be at that point. Started really focusing on um on going to law school, getting the going to the best law school I could, um, ended up getting into my dream school, which was the University of Virginia. Um so I went to UVA in Charlottesville. Um I wanted, I was, I was interested in being um in being a criminal defense attorney ultimately and and certainly uh a public defender. I remember in my um my personal statement on my law school applications, I said I wanted to be a public defender. So this was something um a long time in the making. Um and then graduated from University of Virginia, did a postgrad um law fellowship at the Fredericksburg Office of the Public Defender, um, and then after passing the bar, had the opportunity to go to Fairfax and and just started uh went went straight to the public defender and started the day after I passed the bar exam. So been doing it my whole my whole legal career.

SPEAKER_02 3:26

Okay, I'm hearing about an interest in criminal law, and then at some point saying public defender. So was it just something fascinating about uh true and alleged crimes or what? And what made you decide to go on the side of the angels criminal defense rather than the side of dark prosecution?

SPEAKER_01 3:49

Yeah, and I and I don't I don't know what it was. I I always just I loved the uh I loved the criminal law movies and criminal law books and TV series, and that was just always what uh what drew my interest and the fact that that was something that I could actually, you know, you could actually go and do that as as your career, I think, was was great for me. Um I never had any interest in being a prosecutor. Um never have, I don't think ever will. Um just something about uh about defense and and advocating uh is way more way more interesting for me. Um as far as public defense more specifically, um after my first year of law school, I interned with the public defender's office down in Pulaski, Virginia, which is a very small office, very rural office that covers several counties down there. And um just my experience in that office and working with those clients, um, that really just showed me that not only did I want to do criminal defense, but I wanted to do public defense for sure. And that was kind of a great experience for me.

SPEAKER_02 4:50

Well, Pulaski's out of the way. Did you have contacts there to just go ahead and rent a basement and a house?

SPEAKER_01 4:56

So it was kind of a funny story because I was at that point only a year removed from Virginia Tech. So I actually went back and uh and lived with uh with a friend who was still at um was still in college. So I kind of got to pretend I was in college for another summer. Um so that was very fun. And then commuted to Pulaski from from Blacksburg.

SPEAKER_02 5:16

And uh how long were you over the Fredericksburg office?

SPEAKER_01 5:20

So that was um that was really only about three months after I graduated from law school, but before I had my bar exam results, um, which is something that um, you know, these days they'll actually, the the Virginia Indigent Defense Commission has sort of changed their policies where they they're willing to hire um three L's, they're willing to hire people who have not passed the bar. Um that didn't ten years ago when I was uh going through this process, that wasn't something that they did. They would only um they really only hired you as an attorney if you were barred. So it was pretty common then for um for new uh law school graduates to do these sort of um unpaid legal fellowship opportunities for a few months while uh while they're waiting for the bar results to come in. Um but that was a good experience. Um at the Fredericksburg office. I worked almost exclusively in the city of Fredericksburg, which um it's a great little town. It's it's a very small, one general district court judge, one circuit court judge, one JDR court judge. Um so you really get to you kind of really get to know those judges and and those prosecutors in a very small jurisdiction like that.

SPEAKER_02 6:28

Well, one of my most interesting experiences over in Fredericksburg was that uh this was over 15 years ago, and I represented a man who was in the army. And uh, as you probably know, if you just get a DWI charge and certain other criminal charges, and you're in the army, sometimes just showing the door even before your case gets resolved. Have you experienced that? Or maybe the people in the military don't qualify for public defenders.

SPEAKER_01 6:56

Yeah, I I wouldn't say I've had a I have not had a lot of military, um, I've had a lot of some some veterans, not very many active military, um, but I know that certainly in that part of the state, um, in Stafford County in particular, has a a big military presence.

SPEAKER_02 7:10

So the first thing, I think it was a retired judge who who uh had been full-time before in Stafford, and I noticed that he wasn't causing calling any lunch break. He'd he'd say, you know, uh, we're gonna recess for 10 minutes, he came back. So he was probably having his snacks over there. There was no lunchtime called. And so what I learned is, you know, keep some food in the car, keep a couple of power bars in the in the briefcase. And we worked out a deal with the prosecutor to save my client's career. My client found out from his commander that my my client was in the army and he was uh the person who would uh uh take care of the target range, and his uh commander said, uh, as long as you uh if you do any jail, because he had a high uh blood alcohol content for this car head-on car crash case of 0.20, as long as you stay out of uh uh stay out of jail Monday through Friday, you'll still have a job. So we worked out doing some like 10 weekends in jail for reckless driving, also avoid uh DWI was the watchword. And the judge said, no, I'm not gonna do weekends. So we went on ahead and appealed that. And um I'm not ashamed to say uh the judge on appeal was blind, he's not sitting anymore. And um I just uh kept talking to the judge to try to distract him from the essence of why the judge might not want to give us weekends, like that it was a high blood alcohol content, and we we got what we wanted there. Uh but see, related to this was that judge that we were in front of having been in Stafford, I don't know if you've done any Stafford defense, uh, a lot of the prosecutors in Stafford like to say, well, the Quantico Marine Base is just up the street, and we're not about to try to help save uh people's careers who are military or security clearance, because we got a bunch of people with military and security clearance over in Quantico. So that was one of my most interesting experiences over there.

SPEAKER_01 9:15

Yeah, well, a good example of a uh a creative solution.

SPEAKER_02 9:20

Well, that's right. Okay, so the first time that you uh tried cases or at least showed showed up in front of a judge, was that over in Pulaski or was that over in uh Fredericksburg?

SPEAKER_01 9:32

Well, it's a I and I'm getting more into my story, but um, yeah, in in Pulaski as a one L, I wasn't doing much, but my after my second year of law school, I actually did an internship in Fairbanks, Alaska, um, and actually spent the summer out in Alaska with a third-year practice certificate. Um, and I had probably way more responsibility than I should have in Fairbanks. Um, I was handling a misdemeanor uh docket at that point and was basically just operating as if I I was a BARD attorney. Um, and they don't have a differentiation between general district court and circuit court in Alaska. So I ended up actually having a jury trial when I was uh when I was a 2L intern, um, which was very interesting. Um so I actually got a ton of experience that summer. Um so then, you know, heading into um after after getting my degree and moving on, I actually had had had a lot of good experience actually really working with clients and really doing cases.

SPEAKER_02 10:34

Um what is your training uh for um trying cases and defending clients in general in terms of in-house? Well, I guess I shouldn't call it out-house. So uh in-house with the public defender uh folks, what do they call them? It's the indigent defense commission in Virginia. So uh through the Indigent Defense Commission. And have you done any external programs such as uh anything through the uh national uh what's it called, NCDC, National Criminal Defense College, Child Practice Institute, or anything like that?

SPEAKER_01 11:10

So, yes, like you said, Virginia Indian Defense Commission has a lot of great um sort of under our umbrella training. Um, all of our new attorneys go to a public defender boot camp. Um I actually was uh was an instructor at the boot camp this last December, which was a fantastic experience, um, sort of with brand new attorneys, all attorneys who are in their first year of practice. Um I've also gone to the uh Engine and Defense Commission's program for more experienced attorneys that we call uh Shark Attack, which I guess that's advanced trial advised college. Um so that was also a great experience. That's been a while. I guess that was 2019. Um but those programs are extremely run uh well run. But I'd say um I haven't done any of the other ones, I haven't done NCDC or anything, um, any other external programming. But um having worked in uh Fairfax for a long time, you mentioned uh Brian Kennedy, you mentioned um Shalev. Uh those guys were people who were fantastic mentors to me um throughout my career, and and getting to watch uh both of those guys and obviously several other attorneys in that office, um uh Andy Elders, Don Bouderak, um uh Katie Donahue, just dropping a few names, and then Nigene Ferriman, Jessica Newton, watching all of the more extinguisher uh more experienced attorneys in Fairfax detrials, really got to what uh got to learn through through watching them over the years. And uh that was really the best training that that I got.

SPEAKER_02 12:34

Now, by now, how many uh jury trials have you done uh and just bench trials and jury trials combined?

SPEAKER_01 12:42

Sure. Um the and and this is always a number that I like to throw out there um because I uh at the at the public defender boot camp and I've also taught a um a Virginia CLE on negotiations, and really just highlighting you know the amount how how rare it is to actually have a case go to jury trial. I think in my 10 plus years as a public defender, I've had something like 3,500 cases, and then I think I've had 16 or 17 jury trials. So it is yeah, it's quite it is quite rare for for a case to go the distance. Um as far as bench trials, I I stopped keeping track of those, but probably in the in the hundreds range. Um something in in in Fairfax, as you know, Fairfax is just such a uh such a hotbed for traffic cases that in my first couple years of practice I was trying DUIs pretty much every week um in a general district traffic court in Fairfax. So um lots of that. And um I've done uh bench trials in in the juvenile domestic relations court as well, uh for juvenile defendants and and pretty much everything in between.

SPEAKER_02 13:50

Right. And uh what are some of the most serious kinds of cases that you've handled?

SPEAKER_01 13:56

Uh sure. So um at the end of last year, um I did a case with uh Brad Haywood, who is the um the former public defender here in Arlington. Um we did a uh a felony homicide case that had to do with a um allegations of sort of a what what they um now call abusive head trauma, but most people know better as shake and baby syndrome. Um so we had a we ended up having a jury trial, a long jury trial with that. Um in Fairfax in I guess it was uh 2023 had a uh a homicide case that ended up going to jury trial. Um both of those ended up um with without convictions for murder, which was fantastic. Um I've also tried aggravated sexual battery cases, um, I've tried uh drug distribution cases, I've tried um felon in possession of firearm cases and some other serious felonies. That was part of the reason why I I ended up wanting to make the jump to Arlington, is um I became the senior trial attorney here in Arlington. So my I I go through I go in all three courts and basically um just responsible for handling a lot of the more serious felony cases and that come through Arlington.

SPEAKER_02 15:07

When you say you're the senior trial attorney, does that mean that you're the number two over there?

SPEAKER_01 15:12

No, no. We actually uh we are currently in the process of hiring a deputy right now. Um Allison Carpenter recently took over after Brad Haywood stepped down. Um but uh the senior trial attorney is just kind of a unique position in Virginia Engine Defense Commission where um it's just a a senior level attorney who's uh gets sort of is prioritized to receive some of the more serious felony cases.

SPEAKER_02 15:35

Got it. Now, uh when you say you didn't have a homicide conviction, that shake and baby case in the other one, uh was there a conviction? If so, what was the conviction for?

SPEAKER_01 15:47

Sure. Um in the case that I tried in 2023, uh we it it was a they they went we went to trial on murder and he ended up being convicted of um uh voluntary manslaughter um and actually just received a a three-year sentence and he's actually already done his time and has been uh is back in the community. Um and then for the trial that I had here at the end of last year, uh it ended up coming back not guilty on the felony murder. Um they didn't the jury did end up convicting on a child abuse. We actually have that sentencing coming up uh at the end of the week. So um we'll see how that goes. But they did um they did acquit on the felony murder charge.

SPEAKER_02 16:24

For the shaken baby syndrome uh theory of the prosecution, uh to what extent did you uh explore and find out uh uh about the difficulty in being able to have uh injury and just shaking a somebody versus having uh their head or some other part of their body uh hit an object, you know, versus just you know holding them in the air and just shaking them in the air and not having their body uh touch any object.

SPEAKER_01 16:55

Sure. And um, as I mentioned, I I did this case with Brad Haywood. Um, and Brad did spent so much time um really becoming an expert on that. And we talked to so many doctors, and um during the course of that trial, which ended up being a six-day trial, I think that there was testimony from seven different expert doctors, um, because you know, for the most part, the Commonwealth would have an expert, and then we would have a we would have an expert as well. But for that kind of case, they there was a child abuse specialist and a um uh the doctor who did the autopsy, and then the doctor who studied um the a forensic anthropologist who studied the bones. Um, and then there ended up being um competing doctors on both sides. So that was I I absolutely never had a trial like that where I had to become an try to become an expert and read up on on some so much science. Um it really was a huge undertaking. Um one of the more complicated cases I've not only that I've seen, but that I've seen in a public defender's office. Um so it was incredibly interesting to have to learn all that, uh incredibly difficult. But um, you know, we had we had so much help with uh with interns and doctors and other attorneys who were all willing to to reach out and help on that to make that case come together. I don't know if that answered your question or not.

SPEAKER_02 18:16

Uh you have there's a prosecutor who was a public defender, Laura. I won't name names, I won't name the county, and I uh I don't know how to diplomatically just ask him, hey, to what extent was this just about money? But let's talk about pay parity and and pay disparity between uh public defender lawyers and uh and prosecutors. Uh how how widely varying is that in Virginia? And to what extent is that gap closed at all in Arlington and Fairfax, the two counties where you've been working?

SPEAKER_01 18:53

Sure. So all throughout Virginia, um there's there's a code on the books that says that any county that chooses to supplement the pay of their public defenders can do it. Um and over the last, I'd say this really started to pick up a lot of momentum and probably around 2016, 2017. That was when a lot of counties started started stepping up and uh and paying the public defenders a supplement. Um and I know that that Fairfax was, Fairfax does it, I know Arlington does it, Alexandria, I believe Prince William at this point, I think Richmond does, but there's a lot of counties that still don't, um, especially in the more rural areas. Um and in those areas, obviously the the prosecutors aren't being paid as well either. But um for those unsupplemented public defender positions, I think that there's still a pretty large gap. Um and then it continued to be a pretty big gap everywhere. Um I will say last year there was a um most public defender, I think if maybe not if all public defenders in Virginia ended up getting a pretty nice raise because what they actually ended up doing was making creating a better pay parity between the public defenders and the um assistant AGs in Virginia. Um and that to me and to to most other people in my office, in my former office that we talked to, that's just a no-brainer. Why would you not, why would they not, Virginia not be paying their public defenders as much as they pay their um their comparable assistant AGs? So that was a that was a big step. So I think now with that um with that pay increase along with the county supplement, it's still not quite parity, but it's getting a lot better, particularly in the in these northern Virginia jurisdictions.

SPEAKER_02 20:38

Is there still enough disparity between uh the pay of prosecutors and public defenders in place like Fairfax and uh Arlington, that if a person uh had no preference, whether they were on the defense or prosecution side, that it would be enticing just to go to the prosecution side?

SPEAKER_01 20:57

I think I and and and I'm I don't have the numbers in front of me, but I I certainly I believe that you would still make uh you would still be earning more money as a prosecutor than you would as an equally experienced or equal positioned public defender for sure.

SPEAKER_02 21:11

And how about uh any disparities uh about the equality of resources of support staff in the public defender's office in Fairfax and Arlington uh versus the prosecutors' offices?

SPEAKER_01 21:26

Well that I I I think that the the the Commonwealth is always going to have sort of an army of um of paralegals and um and some support staff, and obviously they have a lot of the um a lot of the the police department to to be able to assist them on things as well. Um so I I don't know if that's ever going to be um equitable, but uh I think it's it's certainly improved. And I'll I will say, just in and I've been fortunate to work in uh in two large well funded offices in Fairfax and Arlington. But um I think both of those jurisdictions are fantastic on giving public defenders uh access to expert funds um as far as trying to you know giving giving us what we need to do cases as as well as we possibly can. Um and that's something that um I think is uh appealing about being a public defender as opposed to maybe being a private practice is because I I I've been able to get access to so many um get access to so many experts that I need and to the resources that I need and to run endless searches on Lexus when I'm writing a motion or what have you. Um there's certain parts of being a public defender that are great in that you can you can really proceed on a case how you want to.

SPEAKER_02 22:41

What are the sources of of providing the funds for experts? Is it just through the judges or is there budgeting in the public defenders' offices themselves?

SPEAKER_01 22:52

Um I just uh I file the motions and the judge, I'm sorry, I got my automatic light here. I've been staying still too long. Um I I I file it with the judges. The judges sign off, and then I think it goes to the Supreme Court. They give us some pushback occasionally, but for the most part, um people have gotten paid in my experience.

SPEAKER_02 23:10

In both Fairfax and Arlington, for over the last four years, we have chief prosecutors who are these uh self-styled progressives. Uh, how progressive are they really to the benefit of our criminal defense clients? And even if these chief prosecutors are, how much does that really trickle down to their line prosecutors, especially if these line prosecutors don't want uh their their resume to look like they're working for some uh woolly-headed pink o'clock and then not being able to get hired at the U.S. Attorney's Office, for instance?

SPEAKER_01 23:45

Sure. And I'll, you know, I'll I'll I'll tread lightly in this response because um I I I felt like I I left Fairfax on on great terms with a lot of prosecutors and I'm and I have I have good relationships with the ones in Arlington. But as far as you know really having this progressive agenda, I'd say both in Fairfax and Arlington, it it's it's not as it's not as progressive as um as I would wish they were, and they're not as progressive as the maybe right-wing media would would make them out to be. Um, I I think that there's still um there's still a lot of there's still a lot of decision making, there's still a lot of um you know choices that they make that I um I think can maybe could maybe go against um go against some of those values. And I and I certainly don't think that um it's as bad as you know the the Heritage Foundation or or or new or Newsmax or or Fox News might make make out make it out to be as far as their reputation for being progressive.

SPEAKER_02 24:48

I practice in both places, and my experience in both places is I I think that uh some of the line prosecutors who don't seem progressive at all, I think some of them just aren't interested in progressive prosecution. They may have paid lip service to that when they uh when they interviewed, but then uh they're they're given so much leeway that they do differently. I'm gonna give you an example. I'm not gonna name names, I'm not gonna give uh tell the county, but I showed up for a blood DWI case. This was not an egregious, these were not egregious uh uh allegations against my guy. He did blow up, uh sorry, have a 0.15 or 0.16 uh blood test result. And when I showed up on the trial date, I said to the prosecutor, okay, let's do uh let's do this as a reckless driving case. He said, No, let's just go to trial. And uh the the goal was at worst to go ahead and get a no-active jail plate by getting the uh the charge amended below a 0.15. He wouldn't even do that. I said, why? He said, Well, you have your expert here. You forced me to bring my counter expert, that's the head of the breath testing unit. Well, no, not the breath testing unit because it was blood. I think it was blood. Well, whoever it was, you you forced me to bring all my witnesses. Let's have a trial. This prosecutor did not talk, act, or speak whatsoever like a progressive person. So uh I think I heard you say a few moments ago, uh, sometimes you see prosecutors in these two counties not making decisions you agree with at all. Uh, tell me if I'm wrong. And can you give any examples?

SPEAKER_01 26:27

Um not necessarily, you know, uh just examples where um uh a prosecutor will make an uh an offer that you just really just believe to not at all be appropriate for the situation, and sort of just really digging in on it and to the point where maybe they're not even willing to consider mitigation. Um and at that point, you know, I I I don't think that yeah, I think that would be a good example of really not not having not approaching not approaching criminal justice from it with a progressive mindset. Um and another thing I I I would say is I think a lot of the changes in the law in Virginia in the last five years have made way more of an impact on um on the progressiveness of legal justice system than than any county offices have, um, and that referring to things like moving the uh felony larceny threshold up to $1,000, getting rid of petty larceny third, um, the some of the changes with um the uh probation violation um punishment scheme um and certain things like that, sort of uh moving off of some mandatory minimums, things like that I think have made way more of a difference um than really policies in a in a couple of counties.

SPEAKER_02 27:45

Now in Arlington, uh with with no exceptions that I know of, the prosecutor's office does not want to agree to give uh discovery uh evidence before trial without a protective order. And I rarely, if ever, see that in Fairfax. What do you think about that?

SPEAKER_01 28:05

Yeah, um I I have noticed that. Um, and it is just there, there are some small differences like that that are I I find to just be a bit annoying, um, that definitely would raise an eyebrow. Another thing in Arlington is it seems that as part of almost every single plea agreement in the general district court in Arlington, there is a there's a waiver of appeal um involved in in accepting the agreement. Um and that was not something that I ever saw in Fairfax. Um and I that I quite frankly really don't agree with. Um I think the whole point of having a general district court um and then having a circuit court is that someone can should have the right to uh to appeal the decision. And I think even if it's something that, even if they came to a plea agreement and that they entered that plea agreement, um I think that they should be able to, they should be able to change their mind on that decision in the the amount of time that's allowed by statute. And if the prosecutor wants to say, okay, fine, I'm never gonna make you an offer on that case again, then so be it. Uh I that's something I would always um explain to clients before you know if they if they did decide that they wanted to note an appeal. But for it to be sort of part of every single agreement, I think even Arlington, it's even written on the plea forms in general district court that you're waiving your right to appeal. Um, I I very much uh would would oppose that that practice. Um and if I can ever get the ear of anyone who cares, I would I would argue against that. Um and I'm not I'm I'm not sure what what incentive that has for the court and prosecutor, too, because the amount of people who would actually take advantage of it is very small. Um but I think that that's an important right, and I I I would certainly advocate for to retain your right to an appeal, even if you do enter a plea agreement in the general district court.

SPEAKER_02 29:43

Have you ever gone over the head of the line prosecutor dealing with when you uh think that that uh prosecutor is just being totally unreasonable with negotiations or something else and and uh and gone to their their supervisor either jointly with the line prosecutor or just separately?

SPEAKER_01 30:01

I I have. I don't like doing it um because it to me it just sort of reeks of like, well, I'm gonna go, I'm gonna like go tattletale on you in a way. So I don't like to do it, but I I have had to, I have done it a couple times in just very specific circumstances where I want to bring another um, really just want to do my best to bring another set of eyes on there to to really try to see if we can get something else. And usually this is about, usually it's in trying to lock down a plea offer that that this would happen.

SPEAKER_02 30:32

And when you've done this, to what extent? Have you checked in with the line prosecutor along the lines of do you mind if I uh you know get a fresh year from one of your supervisors, or do you mind if I talk to you and your supervisor?

SPEAKER_01 30:45

I don't know that I've ever done it that way, to be honest. I think I probably would just and that's why I don't feel that's why I don't like doing it. That's why I try to avoid that circumstance. Yeah.

SPEAKER_02 30:54

And did you ever have success doing it that way?

SPEAKER_01 30:58

Well, uh, maybe some, maybe uh it depends on how you define success. I think I've I've I've gotten I've done that before and gotten whittled down a little bit of a better offer, maybe just squeezed a few more drops out of a to get a better offer. But never has it, I I haven't had that kind of situation where I run it up the flagpole and then the the the higher up really came down and said this we should we should be dropping this entire case or something like that.

SPEAKER_02 31:23

All right. So, Michael, when you started over in uh over in Fairfax, uh that was before the current chief prosecutor's administration, right? So in Fairfax, you were there uh during two different chief prosecutorial administrations.

SPEAKER_01 31:41

That's yes, I was. I was there when I when I first started, it was uh it was Ray Moreau and then um with Steve Descana taking over in uh at the beginning of 2020, I think it was.

SPEAKER_02 31:52

Do you have the same perception that I do that uh a lot of the newer um prosecutors and criminal defense lawyers in both Arlington and Fairfax are just getting less uh trial experience in part because of how uh both of those prosecutors' uh offices in Fairfax and Arlington treat negotiations.

SPEAKER_01 32:15

I I think that that's probably true. I don't I don't think it is that way where you know how I was describing earlier where they're um you know, where they're putting up trial, they're putting up bench trials every week as a as a young attorney. Um I don't think that that is happening as much anymore, but I don't know that it's a bad thing. Um obviously, you know, trial experience is good, but at the end of the day, um, you know, good out good outcomes is is is are and is really what I how I boil down the entire job of being a public defender. So if the outcomes are are are good or are improving, then I think that's an overall good, even if you're not getting the same trial experience that um that you would have. And I and I and I think there's other factors in that too. When I when I was doing um a lot of misdemeanor cases in 2014, 2015, 2016, we didn't have um body camera. Um we didn't have as much discovery. So I think that you know there were a lot more things that you didn't necessarily know that you would they they had to really put on live evidence for um that now you you have body camera and you can just sort of see what happened. Um and I think when you when there's uh when there's more discovery, it's it's good and bad because sometimes um that more that additional discovery is uh will will show why why you can't win. Um so I think that also has played a role in why there's maybe maybe fewer trials than there were 10 years ago.

SPEAKER_02 33:38

I do notice that I had a lot more uh trials under the uh administration, prosecutoral administrations uh that don't claim to have progressive uh chief prosecutors. I still do plenty of them. Um I don't want to hex myself by saying that uh I would think that uh a lot of people would become prosecutors because they want to try cases. Uh, but then on the flip side, there I'm not gonna name the county. There's a former prosecutor uh from a county uh in Virginia, and he said to me, gee, John, he said, when I was a prosecutor, we would sometimes join together and talk about which criminal defense laws we were going up against for the day. And if one of us said John Katz, the others would say, How did you draw the short straw? I said, Oh yeah? He said, Yeah, you'd come into the courthouse with guns blazing and a court reporter in tow. I said to him, Well, did that help me? He said it did with me. I was lazy. Now I'm gonna give you an example of what happened when I did go over a prosecutor's head. This was in a county a little bit south of northern Virginia, and it was a DWI case, and I was representing a federal cop. And I said to the prosecutor, look, we gotta do a reckless driving here. My client's gonna lose his job if uh if he gets convicted of a DWI. And she said, I'm speaking, okay, fine, it's Stafford. She said Quantico's up the street, Quantigo's up the street. We got the Marines there. Uh now we can't be playing favorites. I said, Would you mind if I speak to your supervisor? She said, Go ahead. She knew what the prosecutor was going to say. No. So I went to the person who's the deputy chief prosecutor, then he was as nice as could be in tone of voice and in listening, but then he explained the same thing. So went back to the courtroom. This was back in the days, so over 12 or uh 13 years ago, uh, before this prosecutor's office would even give us copies of the incident videos. I had to go all the way down to Stafford and watch the video and come back. So I put it, I handed a note to the prosecutor who was at the uh uh counsel table in the district courtroom saying, uh, please make sure that the videos and the videotape and video player are queued up. And she writes on the piece of paper, stop passing me notes with three exclamation marks. And I was delighted. This reminded me of a case in another state where when uh I was talking to the chemist uh for a drug possession case, and in this state, drug possession is a misdemeanor, so you get a lot of your discovery only on the trial date. I was talking to the chemist, and uh I said, Look, uh, can I see your notes on the case? She had about 10, 20 pages of notes. And the chemist said, Well, I want to be there with the prosecutor when you talk to me. I said, That's fine. And when the chemist came to page 10, the prosecutor said, What's that? And the chemist told her, She said, You don't have to show that to Mr. Katz. So I said to her, You may want to rethink what you just said. And she said, Why? I said, You know exactly why. And you know, Michael, you uh uh a lawyer cannot tell a non-client uh not to show something the other side. So the prosecutor was so steamed at me that uh this was all about uh uh cocaine being found in my client's uh handbag after a stop for speeding. So the prosecutor asked the cop why he stopped the car and he started trying to uh say why. And I objected, and the judge said overruled. But the prosecutor wanted to show me who's boss and who knows the law better, so she kept asking him questions about the stop. And she said, Well, did you pace? Uh did you do pacing, radar, laser? Uh he said, Uh I did pacing. And so I objected that there was no certification of the speedometer. He said, No, there was no certification. We just bought the car new a week before. And she was so convinced to go ahead and show me who knew right. Uh that she got totally flustered, she totally lost out. And the judge said, overrule to my saying this was a bad stop in the first place, and she rested and I won the case. My client's boyfriend was also caught in the car with marijuana on him. Uh that was in the days when marijuana possession was still unlawful. Her boyfriend hired me. The prosecutor called me uh a week before the boyfriend's case. She said, Do you think your uh your client would be willing to just inactivate the case to do some community service? And I did some hemming and hawing, hemming and hawing. Said, I don't know about this, and she said, What do you mean? I said, Well, you know, he paid me more money for this than my client because this was up on appeal to the higher court, so I had to be ready for a jury trial. And I said to myself, this is four weeks after she screwed up on the law in the first case, and she still didn't get it. And so I got the case inactivated for the boyfriend too. Now, looping this back to Stafford, so we went to trial, the prosecutors all irritated at me for passing the note, I guess, to have the uh video queued up. And uh so the prosecutor said to the cop, Why did you stop the defendant's car? And the cop said, Well, the def I was driving behind the defendant, the defendant made an unsafe left-hand turn. And uh so I followed the defendant uh into the left-hand turn and s and uh and stopped him. So if the prosecutor had just taken time to uh talk to the cop about what was on the video, or look at the video herself, which apparently she didn't, she would have seen it wasn't just uh this it was an unsafe left-hand turn, but also my client kept on uh scooting over the yellow line. The video wasn't played in court. So I objected to the stop, and the judge was this retired judge, not the same retired judges in Fredericksburg. And the judge starts leaning back in his chair. This is around uh 11:45 a.m. I have my lunchtime theory. Do you have that one that sometimes when judges come in there at lunch, they maybe want to speed things along?

SPEAKER_01 40:14

Absolutely.

SPEAKER_02 40:15

So the judge starts leaning leaning back in his chair. I'm not gonna do the accent. It was uh definitely uh uh deep Southern Virginia accent. He starts saying, Well, the officer says that the defendant took an unsafe left-hand turn. Now, I don't the the the judge didn't even ask me anything. The judge started just started talking. I don't know how it could be an unsafe left-hand turn if the officer followed her into the unsafe into the left-hand turn. He wouldn't have if he followed her into the turn, it wasn't unsafe. Well, Michael, you probably picked up on this already. So the car is coming towards my client, the client turns left in front of the car, the car passes by, there's now no oncoming traffic, and the cop makes the turn. So the prosecutor says, Judge, can I recall the cop the cop? The judge says, No, ma'am. Then he says to her, I've given you a lot this morning, I'm taking this from you. I'm leaving the courtroom, I'm in the parking lot. I said to my client, so how did I do? He says, You didn't do anything. You didn't do anything. Well, it's not about us, right? It's about us winning. Well, my client must have liked something about it, or else uh, okay, fine. I'm switching the genders. It was a woman, okay. So it's a woman who I won for. Two months later, yeah, called by her husband. He's a federal cop with a different agency, too. I got caught with DWI over in Fairfax, he says to me. So he hires me for that. I show up. This is under the Murrah administration, and the cop in the case says, Sean, I begged that your your clients to leave the scene. Leave the scene. He his his car hit a snowbank or whatever it was. Uh it was his prize Mustang. I just told him to leave. I said, if you stay, I'm gonna have to investigate you for DWI and arrest you're just gonna get ugly. I saved his career too. He did that as reckless driving. So this gets to this one here. The name of this show is uh Beat the Prosecution. And uh certainly for me, you know, beyond preparation and what we learned at the National Criminal Defense College Trial Practice Institute, beyond what we learned at the trial's college, etc. I do believe strongly in applying um uh the benefits and and teachings of the martial art of Tai Chi Chuan uh that I use, and also about uh the benefits of what my fifth and sixth grade public school teacher would say to me once every month or two, which was Jonathan, don't be irritating. And I don't I don't know if you and I have talked enough about my ability to be irritating, but little did I know that that could actually be a benefit to criminal defense. Because I'll I'll just do the I'll do the cat's drone, I'll just do the drone on and on with the prosecutor or cop when I'm trying to get something to the point where the prosecutor has the choice of giving me what I want for uh negotiations, saying, get the hell out of here, or just saying, let's go to trial right now. Okay. So that's not really a secret because that's just the way I am. I'm very talkative. So what are your main approaches to winning beyond just preparation and beyond just uh the usual trial skills that we learn? Or is that pretty much the extent of it?

SPEAKER_01 43:45

Yeah, so like I mentioned, um I I'm a I'm a big proponent of of negotiation. Um, and that's something that I that I've done trainings on for with for other attorneys as well. But my big philosophy with that is you want to. be pleasant, but you also want to be difficult. So you want to have a good relationship with this prosecutor, but they need to know how difficult it's going to be for them to actually get a conviction when they have a case with you. And you know that comes from, you know, whether if you're if you're going to start if you're in in the general district court to to have have the trial and appeal it. If you have, if you're in the general district court on a felony charge to have that preliminary hearing, to file the pretrial motions. I love filing pretrial motions. I love trying to think of um ones that haven't that are very uncommon. I've filed motions to dismiss for outrageous government conduct. I've filed um writes that haven't been filed in criminal cases in a hundred years. I really like to to the the more the more obscure the better. But really just trying to um trying to just negotiate really the best as that you possibly can to be an expert at the guidelines on felony cases. That's really really I I'd say you be you you can beat the prosecution and maybe with them not even realizing that they've been beat um when you when you can when you can work on negotiation, when you can really be an expert on the guidelines to know what what exactly you're going to be looking at if a client does accept an offer. So I I'd say other than just you know really being prepared really and and going to trial, I think that there's um I think that really exp exploring different ways to to negotiate and litigate cases um and really make the prosecution work work for a conviction can really lead to a lot better outcomes.

SPEAKER_02 45:44

Interesting what you say about negotiations and filing all this stuff in the sense I don't know if I don't think you used the phrase wearing down the other side. Yeah and that's a good way to put it I remember I was talking to a prosecutor who I generally like better than a lot of other prosecutors a lot of prosecutors have their sides of them can be really irritating. But one day I said to him Am I irritating you? Because I seem to be having an impasse here with negotiations. He said nah it's just that if there's anything I I've got a beef with you on he said I don't know how you make any profit. He said you seem to be working all the time well I am working all the time except when I'm with my friends and family and sleeping for instance and doing martial arts and I like them knowing that I like them knowing not only that I'm working all the time but that I love doing it.

SPEAKER_01 46:38

Yeah and I I I've had conversations with other with other public defenders that I admire and and we've joked that my my job is being a a public defender and my hobby is being a good public defender which means you know putting putting in the extra work. I wish I had better hobbies. I wish I had a golf game or or something like that but um I also am somebody who um who enjoys working gets a lot of gets a lot of meaning out of it.

SPEAKER_02 47:09

Okay so uh are you familiar with the getting to yes approach and have you read the book Getting to Yes for Negotiations by Fisher and Uri I don't think I have no okay so it's a great book it's a thin one it's a quick read and uh certainly um it works with differing um levels of success when I say to the prosecutor, you know why don't we just negotiate based on each of our goals rather than our positions my client he's an immigrant andor he's got a security clearance uh and and he's very flexible about a disposition that's going to save his reputation save his career save his security clearance save save the immigration versus the take it or leave it prosecutors who say look uh I'm I'm not gonna look like I'm playing favors to someone just because I have a security clearance or or uh or because their immigration status and um the that tends to go further I think under the current uh administrations in Fairfax and Arlington than in the in in the predecessor administrations right in Fairfax uh how often are we able under the previous administration for felony negotiations to be able to negotiate based on uh sentencing caps uh based on sentencings versus just negotiating based on uh uh based on counts yeah and I I hardly ever want to accept an offer that doesn't include either a sentencing cap or a guidelines agreement um as far as simply just charge agreements without um without a uh a sentencing agreement I I I'm really not in favor of those um because I don't think that at that point you might you really can't even necessarily say that you're doing that much of a benefit for your client.

SPEAKER_01 49:01

And just sort of going back to to what you had said, I I think that when in beating the prosecution there's so much more to it than just you're you're a debate champ, you're you're a trial ad expert because in order to get those good outcomes for your client for the vast majority of cases, it's it is so important to know what their goals are, um what what they want out of it and then also what is their what is the mitigation that you're going to be able to get from them that you can present? How can you sell this? And for that you have to you have to put the work in of knowing your client um knowing exactly what their situation is and knowing what they want to get out of it. Now for trials uh how much does it help you to use uh storytelling approaches and scene reenactment approaches yeah um as far as you know I I certainly don't shy away from from being a little bit more um you know being being dramatic in a in an opening and closing and and and going about it in a storytelling way. I'm not somebody who's necessarily doing a bunch of demonstrative evidence or demonstrative exhibits or anything like that. I'd like I not that I'd necessarily be opposed to if I had the right opportunity to do it. But I do think that I do think that storytelling is important. I think that the I think the juries in some extent sort of expect to see a bit of a show when they when they uh when they're actually seated for a trial.

SPEAKER_02 50:24

One thing I like about storytelling psychodrama scenery enactment is it helps us as lawyers speak as regular people. It takes away the legalese especially when we're speaking in present tense so I for instance I loved my um it was in a different jurisdiction but I loved my uh acquittal on uh uh eight pounds of marijuana in my guy's back seat uh the cops uh know that the um that this eight pound package uh is coming from the airport over to the post office my client picks it up at the post office puts it in his back seat he does blow the uh stop sign and so they have a lawful stop and um my whole uh storytelling theory of the case was hey you know uh let's say someone uh sends us a stolen diamond ring in the mail we open it up we have no idea it's not our responsibility someone set us up and and and set us a uh uh a stolen diamond ring uh you know here we have uh a guy who goes and uh and picks picks up uh goes to the post office what do what do we have for me you got a package so the uh the prosecutor tried to ridicule me in uh in her closing arguments saying Mr. Katz said that um even though the cops claimed that the carotid artery of the defendant was uh was fluttering in and out in and out you know all nervous and shaky when they stopped him that we don't see that in the video once we get out he gets out of the car well a perfect reason for that she said was uh once he gets out of the car the cops said we'll just write you up a ticket for a stop sign and you'll be fine so of course he's relaxed now so I don't know if you call this more storytelling feeling psycho drama whatever I said how on earth can people turn their emotions on and off I said you can't squeeze orange juice from a potato I said if you wake up in the morning and you're feeling on top of the world and you're riding your bike down the road and this guy flips the bird at you and you get angry at the guy the anger was in there at the whole time now this is straight out of Wayne Dyer I don't know how much of of these uh self-help gurus you read or are are or not uh I didn't mention Wayne's name I've met Wayne he was a great guy and all of a sudden when I said that one of the jurors was nodding nodding her head up and down so that was an acquittal there I don't know to what extent that was um that was during nullification or whatever but that storytelling really goes a long way we're near the end of it I do want to ask you Michael have you ever had a prosecutor renege on a uh a plea deal that's been reached because of course the Virginia appellate case law is not favorable for defendants if a prosecutor walks away from a plea deal that's been reached before the uh judges accepted the plea I can't remember that happening thankfully um because I think I would have gotten pretty upset about it. Um but no I I I have not had that experience thankfully I had it in a modified way I mean prosecutors still need to realize this affects the reputation this was with the non uh before there was a so-called progressive in the office and we'd reached a deal where the prosecutor was going to defer to the judge about whether it was a violation of my client's probation to uh test positive for marijuana if he could show that he was using uh medical marijuana at that time that's before we had all the uh medical marijuana all the marijuana reform in uh Virginia and the idea was that he uh might be able to get medical marijuana from neighboring DC so I show up on the morning of the plea the prosecutor comes up to me and he says the supervisor told me I can't do that and I said to him the case law may be on your side to withdraw from that because the plea hasn't been entered I said but this is just gonna uh this is gonna tarnish the reputation uh for me of your office and his response was quite frankly I don't think my supervisors care but he should have cared Michael in my view Yeah Okay well I told you we would be together for until 530. I see it's 530. I really appreciate you join with us one reason why I like talking to the public defenders is you are on the side of the angels. I loved it when I was a public defender lawyer for five years myself uh way back when this was in the 1990s is there anything you want to tell the audience you've not already said uh whether that's about how to beat the prosecution about any um pet projects you believe in people supporting anything at all uh not particularly I'll just I'll I'll tell people um that I I think being a public defender is the best thing you can do with a law degree um and I'm uh I've I've run uh the internship program in Fairfax for a long time involved with it here in Arlington if anybody listening is is interesting in this kind of career path I'm always happy to to talk shop and talk about public defense careers with anyone who's interested. Excellent and how do people reach you?

SPEAKER_01 56:01

My uh email here is mcash at vadefenders.org um I am obviously very busy um but I'm I'm happy to put that out there um if anyone wants to reach out to me particularly uh asking about uh public defense careers or internships I'm happy to talk.

SPEAKER_02 56:18

Michael it's so excellent when I talk to public defender lawyers who are true believers in the work they're doing rather than just saying I want to get trial experience or I I want to put this on my resume. I really thank you so much for joining us. Everyone you've listened to you've heard from Michael Cash. He is a senior public defender in Arlington I really appreciate that he's taken the time with us. This is John Katz at Beat the Prosecution I'm a criminal defense and DUI defense lawyer in Northern Virginia. Thank you.

SPEAKER_00 56:50

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 at info at beatheprosecution dot com by calling our office at 703 383 1100 or texting us at 571 406 7268.