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_03 0:32

Hello, everybody. This is John Katz at Beat the Prosecution. I'm a criminal defense and DUI defense lawyer here in Fairfax, Northern Virginia. I am delighted to have both my guests here today. I'm going to switch the view because I'm only seeing one of our guests and not me. Okay, I'm going to put this on the gallery. I am delighted, uh, so around the gallery after all. I am delighted to have these two folks here. My guests, uh Michael Brockheim and Sweta Patel. Uh these are two lawyers who I respect very much. They have a law firm that's uh, they'll tell you the address in DC and Maryland. I love referring uh cases to them. They've referred many cases to me here in Virginia. Um I'll let them both introduce themselves. You choose who's going to introduce yourselves first.

SPEAKER_01 1:23

Uh ladies first, I guess, Mike.

SPEAKER_03 1:25

Ladies first.

SPEAKER_01 1:26

Mike's a gentleman, um, and a big advocate of women. So um, so I am a Floridian. I grew up there for 30 years. I moved to the District of Columbia back in 2013, um, fresh out of law school. I was three years in. I had worked at the public defender's office in Tampa, Florida. Loved the experience, got a lot of great litigation behind my belt. Moved up here, worked for another mid-sized firm, uh Price Benowitz for a hot minute, about two years. And then I partnered with this guy. Um, I somehow.

SPEAKER_03 2:02

Well, let's interrupt now. I mean, this is a chance for both of you. I thought you were going to introduce yourselves as law partners for us to move backwards. Tell everyone your URL, toot your horn. And now I realize I don't have to have the Brady Bunch camera because I see that green button on top that tells us who's showing on camera.

SPEAKER_02 2:20

There's there's there's no one better at marketing Bruckheim and Patel, or specifically Michael Bruckheim than Sweda Patel. So again.

SPEAKER_01 2:28

So I met this guy actually uh back in 2015.

SPEAKER_02 2:34

And we um a little before we met before. Do you remember?

SPEAKER_01 2:37

Before 2013, we partnered in 2015.

SPEAKER_02 2:40

Yeah.

SPEAKER_01 2:41

And uh Mike was always a great mentor. He started off as kind of like my mentor, right? And then eventually, sometimes now I feel like I'm his mentor. Um but it it was uh great, and you know, we we decided to combine what we excelled at. I have a business background. Mike had the legal background of being a prosecutor in the district for years, and I was uh developing my litigation skills, skill still in the the District of Columbia, trying to transfer some of the skills from Florida that I had. And it it worked out. Luckily, uh we had some trust and luck on our side, and it's been going well 10 years later. Um, we both have a DC practice and a Maryland practice, which currently we're doing a little bit more District of Columbia. Um, but it's challenging. Um, but I guess you know the easiest part of the job is working with Mike.

SPEAKER_03 3:39

And what is the name of your law firm and what is your web address?

SPEAKER_01 3:43

Oh, it's Brookheim in Patel. Um, and our address, our email well, www.brooklaw, br-u-c-k-l-a-w.com. And we are located at 1100 H Street Northwest in the District of Columbia, suite 830.

SPEAKER_03 4:02

Okay, so the two of you practice in both uh DC and Maryland, right?

SPEAKER_01 4:07

So I mostly practice in the District of Columbia, but Mike does do both, and he's uh used to do a little bit more Maryland, but now it's becoming more predominantly DC as well for him.

SPEAKER_02 4:20

I I had a heavier caseload in Maryland in the past. I don't at the moment, largely because of the fact that I have a heavy caseload now in DC, and also I'm doing a lot more homicide cases in DC, which take up more time. Uh, and it's difficult. It's difficult to do scheduling for cases in Maryland and in Maryland counties. Uh, so I haven't really taken on any new cases for fear that I'd be spending more time trying to uh continue cases to work around my schedule than I would just going in there and being able to do everything I need to do for the client.

SPEAKER_03 4:56

And what cases are both of you doing beyond uh criminal and DWI?

SPEAKER_01 5:02

Um we're doing everything from DUIs and traffic-related cases, which tend to be a large chunk of our private practice, but all the way to gun possession. Mike's been doing a couple of murder cases, which have definitely kept him in trial for weeks and weeks. Um and we do everything from violent felonies and we also do some sex abuse charges. I say some with a caveat that I usually try not to accept cases where there's a child victim. I have a lot of respect for attorneys that can do it, but that's just something that I kind of steer away from in my practice.

SPEAKER_02 5:40

Sweat also takes uh takes a lot of family law cases. Um I will take uh civil litigation cases, plaintiffs, civil litigation, uh here, here and there. Um I have to be kind of super selective with those types of cases again for the same reasons, but I don't do a lot of work in Maryland, which is uh which is just my trial schedule in DC.

SPEAKER_03 6:04

Mike, you may be the first former prosecutor uh here on the show, and I really have a lot of questions. I'm not gonna do this to the disregard of Sweeta, but uh, where did you go to law school and uh when did you graduate? And when did you go to the dark side?

SPEAKER_02 6:22

I uh went to law school at the Washington College of Law at American University. I graduated uh in 1996. Uh I went to the dark side the way I think many other Dark Jedi Knights are tempted uh at the time. They didn't really have kind of much going on. Um I, you know, had a couple of jobs here and there, none of which really amounted to much. Uh, but I really feel like my career got started when I went to the dark side. And I in uh 1998, I believe, I started working for the DC office of the attorney general, although at the time they had the uh far less sexy name of the Office of Corporation Counsel.

SPEAKER_03 7:06

Okay, I'm gonna be fair to you. Now I remember the great Tony Serra, who was on my show last year, for a short time he was a uh prosecutor, and I didn't give him a hard time. So maybe I shouldn't give you any harder or you can make up for it now, now that you got me here. But by the same token, I never had any cases against him. By the time he finished prosecuting for a year or two, I probably hadn't even finished college yet. Uh now, did you and I have any cases directly against each other? Were you a supervisor by then? I I don't think we had any cases directly.

SPEAKER_02 7:46

I when I started there, I was the equivalent of a line prosecutor from 98 until 2001. And then I went to different divisions within the office. I did civil litigation defense for a couple years. I was with the DC Office of Human Rights. I went back to civil litigation. Uh, but towards the end of that decade, around 07, 08, maybe a little later, maybe 08, 09, it's all kind of blended together. But I returned uh to that section of the criminal section as a supervisor, and I was there for about a year. Um, and I don't think we had any direct cases. Uh what I remember of John is all the line attorneys complaining about John because he was aggressively litigating every DUI defense case he had and filing motions and discovery requests and discovering demands, and they just could not stand him.

SPEAKER_03 8:40

A million for defense.

SPEAKER_02 8:48

Yeah, they uh there were a few line attorneys, I think, who would say they were fans of John Katz because of how he litigated the cases. Nothing to do with personality or anything like that, but he gave them he gave them a lot of work.

SPEAKER_03 9:03

You know, that that reminds me of what a cop said to me one day. I don't know if I mentioned this previously on this show, when I won a DWI uh case in a county of Virginia, which I won't name for a reason I didn't understand. The judge said, uh, well, I'm not convinced that the uh defendant didn't drink from this uh unsealed container of alcohol that the police officer said he saw on the passenger seat uh after the cops stopped him. We don't see anything in the dash cam show anything consistent with doing that, that the judge found him not guilty on that. And as I'm leaving the courtroom, I hear these footsteps come after me, boom, boom, boom. And uh the cop says to me, I want to shake your hand. That's the best performance I've ever seen in court. He said, I don't like what you said about me, but it was still a great performance.

SPEAKER_02 9:52

That's that's an it that's that's great and that's interesting. And I think a lot of cops, and I would say a lot of cops who practice NDUI defense sort of know the attorneys who they see on the regular. And you know, I think they have respect for attorneys who will put up the fight. And I had one cop tell me, he said, Look, you know, we have, you know, it's like a bunch of us, we got a lot of respect for you, and we keep your name on file. He said, Because we're cops, we do a lot, we do a lot of crazy shit. And if we get arrested, you know, we might, you know, we might call you. And I've got I've gotten referrals. I've had officers, you know, call me for like family, friends, sometimes, you know, for themselves or or in different or in different counties if uh you know if things happened. So I mean, I I don't I I don't think there's a higher compliment than to get a call or a referral from police officer or from a prosecutor. And I've had that, uh, Sweat and I have both had that happen a couple times.

SPEAKER_03 10:54

Well, well, one of the coolest referrals I got from a police officer was for his son. And a year or two before I'd gotten an acquittal with him. And in another instance, uh, I'll try to avoid identifying anybody. Uh, a prosecutor did refer me uh to a cop, and the cop said to me, or maybe to a cop who's looking for someone for his relative, and he said the prosecutor said he doesn't like dealing with me in court. Now we're not gonna have Michael only on here. Okay, Sweta. Uh you mentioned Price Benowitz. Uh, all right. Well, I assume that was a rather secure job. What made you leave there?

SPEAKER_01 11:32

I I think it's um a lot of reasons why many attorneys leave firms. You know, they're they're great people to work with, and I've had some very good experiences with Dave and Seth over there. Um, but I think it's just a matter of upward growth, right? So it was just trying to find more opportunities. Sometimes when you are in a mid-sized sperm, there tends to be harder times moving up the ladder, quote unquote. Um, because there, for various reasons, might be other attorneys that are more senior that are already there. There's less space to move upwards in a smaller practice. Um, so I knew that the attorney that was there before me was um, unfortunately, a very good attorney. And I knew that he had five years in me at the firm. And I knew that um it'd be really hard to get ahead of that because he was good. I guess if he wasn't good, it'd be a different story. Um, but so when I decided to move to Mike, it was more of an opportunity for me to grow as an attorney, be able to have a little bit more independence. But also I've always been drawn to business. My family grew up in the hotel business. I have a business background. I went to school for business. Um, I think if I didn't become a lawyer, I'd go to MBA school. And so it was something that I always enjoyed doing. Um, and I think it also gave me a lot of um, at least partnering with Mike, he gave me a lot of flexibility, a lot of leeway on how I wanted to approach the growth and how I wanted to market. So it was kind of exciting. And I was only 30 years old at the time, right? So it was uh for me, it was an opportunity um for professional growth, and I took it. Um, I think if I would have stayed at price spinwoods, it's not to say I wouldn't have professional growth, but perhaps it would have come at a much slower pace for me based on just who was there, how many spaces are available, and just the realities of working in any firm.

SPEAKER_03 13:33

So both of you took that plunge, like uh I did in uh 1995 at the age of uh 32 to uh give up the security of a paycheck to be our own bosses. So, did you have any specific plans, Sweta, to uh make sure that it would work?

SPEAKER_01 13:51

I mean, I think I was praying and really hoping that my father would take me back in if I failed, was my backup plan. So um, but no, I mean, I think I had I had prepped in advance before I did it. I had, you know, I'm I'm a planner. Um, so I had started planning six months prior to me deciding to take the leap. I had kind of started saving and making sure that I could, you know, last the lower months of still trying to build up my caseload and other practice. Um, but that being said, I I think that it helped because Mike already had an established practice of his own and his reputation. And so I didn't come in with just nothing. I was helping him expand on business that he already had. So it was a little bit easier than I would say building from the ground up, where you're kind of, you know, I was fresh in DC and, you know, we didn't know each other back then, but I didn't know a lot of attorneys yet, right? And that was one thing I knew Mike had going for him. And I think that really helped us is that he had this referral base. He had this reputation of being a great DUI attorney. He had connections for years that I didn't have just based on him being stationed here. Now I can say I have connections and like, you know, I know you. And but back then I really capitalized on Mike's assets. Um, and I think Mike said it like I what I was good at was marketing Mike, and I marketed him better than himself. And I still believe I can do that better than himself because Mike can be humble. Sometimes he can not be humble, but most of the times when it when I need him not to be humble, he's humble.

SPEAKER_03 15:33

So I'm gonna jump in here and tell a little positive vignette about Mike. Uh uh one day when I was still living in Maryland, I think he and I both bumped into each other at the uh metro station to go downtown to work. And I drove Mike or Mike drove me down there when the metro wasn't working. And I said to myself, okay, uh he was on the dark side, but I think he's cleansed himself by now. If he had anything to cleanse himself about, uh Mike, you remember that day? That was so many years ago.

SPEAKER_02 16:06

I do, yeah. If we uh uh from the Rockville Metro station, uh it was just one, you know, one of those uh off days on the red line, and we and we you know we cruised down there, and and by then I was uh carrying uh a green lightsaber blade. I'd abandoned the red blade that I carried for so long.

SPEAKER_03 16:25

So yeah, so it it worked out. Well that that was over 12 years ago because I relocated to Virginia 12 years ago.

SPEAKER_02 16:32

It doesn't seem that long ago, but but yeah.

SPEAKER_03 16:37

Well, Mike, when you went uh when you went out on your own, that was without sweat to promote you so did you have a business plan and is that what you ended up following?

SPEAKER_02 16:47

Yeah, so I went out on my own in 2010. So I left the office of the attorney general to actually go work at at a firm that at a mid-sized firm. And it turned out to be just not a good fit. Uh I was miserable, quite frankly. I don't think they liked me too much. Uh, I only lasted there for maybe two and a half months. And I remember leaving on that day, and instead of feeling worried or upset or mad, I just I felt relief, like it was a new beginning. And I realized I was at the point in my career where I couldn't have a boss anymore. I could work with people, uh, deal with people, but I was done having supervisors or asking permission to do things. And so I knew I had to go out on my own. And then the question was, well, what should I do? And the best contacts I had at the time were the contacts that I had made when I was working at the attorney general's office. Uh, when I was chief of the section, I knew, you know, a couple judges. I knew that I could apply to get onto the uh Criminal Justice Act panel or the CGA panel. And that's basically a cadre of attorneys who operate in DC Superior Court who get appointed to criminal cases that can run you know the spectrum from traffic cases to very serious cases. And you get appointed to the case and you work the case and you submit a voucher your bill, and the bill gets paid by the government finance office. So it's uh a nice steady way to earn and do trial work and practice criminal defense if that if that is your interest. So I knew I had to get on the panel, which I'd applied to do almost right away. And then in the meantime, I figured the best specialty for me was DUI defense because I at least had a perspective about it from being a prosecutor specializing in DUI prosecutions. And so my business plan was to get as much training as possible as soon as possible, uh obtain a reasonably priced office and get a website up so that people could find me and see who I was, and then just sort of kind of put the word out through a lot of the defense attorneys who I knew at the time that I was kind of entering the game. And uh that's what I did.

SPEAKER_03 19:19

You know, I entered uh towards the panel in two interesting ways. First, around 1991, which is when I uh moved over to the Maryland Public Defender's Office after being with a uh corporate law firm for two years doing civil litigation regulatory work. I actually did that one day of training to do the CGA court-appointed work. And Samuel Delgado, who's a great lawyer, he was a public defender lawyer at the time, and and and he uh I think he gave one scenario, he said, Look, he said, I'm gonna talk to you about doing bonds. And he said, one day he had to show up on this uh uh crime scene, and his his client had been arrested for um raping a corpse. Well, boy, and he said, that is the real test about whether you're able to work as a criminal defense lord. But beyond that, I mean he was so animated and talking about how, you know, uh with with bonds, if there's a question about where the defendant works, you can just say right out, he doesn't have a job, you know, just be straight out for that. But I didn't even have to do uh consider the panel until uh seven years later when I went into uh private practice with my former law partner Jay Marks. And the only court-appointed work I ever ended up doing there was during the 2000 uh they called the called them the A16 demonstrations. You may remember that the uh demonstrators against globalization, against the World Bank and the IMF.

SPEAKER_02 20:56

And I didn't really I was prosecuting in court when oh yeah, I would be working on sort of like uh this extended duty, and I remember being in being in the courtroom and they were bringing everybody in, and everyone was asking for trials, and a lot of the uh uh the arrestees of people they brought in there were very animated, and yeah, they um they brought a lot of cases, or at least filed a lot of cases against them, and then we ended up dismissing them a couple months later.

SPEAKER_03 21:29

Well, let's talk about that then because I got involved with that because the succession was in late 1999. Ramsey Clark and I got hired to represent uh Phil Berrigan and Elizabeth Walls and Susan Crane and father uh uh Steve um Steve Kelly after they were hammering on warplanes uh against the depleted uranium that they fired. And uh, you know, I wanted more understanding about how to to defend these uh these demonstrations. Who get arrested and admit what they did often. And so someone suggests contacting Mark Goldstone, who, of course, you know, who's been on the show before, who does a lot of uh the protesters. He still does, yeah.

SPEAKER_02 22:12

He's an icon doing that type of work.

SPEAKER_03 22:13

And I got involved with the National Lawyers Guild, which always has been too lefty for me, but still they represent a lot of civil liberties causes. And it was through the National Lawyers Guild uh that they were assembling a bunch of the court-appointed lawyers for these protesters. And that's how I got involved with that. And so I ask you, how do you feel about being on that side of the prosecution for those cases?

SPEAKER_02 22:42

I I didn't feel great, uh, to be perfectly honest. A lot of the folks were there, you know, they were protesting their cause. I know a lot of people were upset because of different shutdowns in the city that resulted from uh the size of the protests. Um, I don't think anyone in my office at the time was really equipped to figure out a plan for protest cases. And what I mean by plan is not thinking just one or two steps ahead, like, okay, well, we'll file this charge because they crossed a police line and we'll go to court and we'll see if they want to post and forfeit $25 to end the case. But they weren't thinking several steps ahead, which is, you know, these people were exercising their rights to protest for a cause that they believed in, that they weren't, you know, gonna submit to any type of government suggestion or authority. And if you have hundreds of arrestees who are all demanding trials for admittedly minor conduct in the grand scheme of things, what are you gonna do? And they weren't thinking about it then. And then we ended up dismissing all the cases, which quite honestly, myself included, made a lot of line prosecutors feel like, well, why did I give up like my weekend, you know, just to go there and you know, do this work and be there if at the end of the day you're just gonna drop the case? Like, why don't you just drop the case or not file a charge or release them? So it's uh that was really kind of like my first exposure to that. When I was in the civil division, I was on the defense side where lawsuits had been filed against DC and different police officers as a result of different protests in the early, uh, you know, in the early 2000s. Um so I got to see uh, you know, I guess that that culture uh early on. Um and I remembered it, and it sort of uh helped in a few civil cases that our office has had. We've worked with uh Carl Massinio and Mara Verhaden Hilliard at the uh partnership for civil justice and bringing cases against uh against the District of Columbia. I'm working with them now on on one case. Uh we had another case where they they were working with us, or we ended up settling last year. Um and the funny thing, and I always kind of joke about this with uh with with Carl, is he was the lead plaintiff's attorney in those protest cases that for a period of time I was helping to defend in terms of representing the District of Columbia. And I remember him being super aggressive. I always joked with him like how I couldn't stand him at deposition. Um we ended up becoming pretty good friends uh a few years after that. Uh, Carl for a period of time uh was practicing criminal defense, and you know, so I worked with him, you know, we tried we tried an armed robbery case together, um, and we stayed friends after that. He's, you know, probably the first person I would call if uh I had a client or someone who wanted to sue a governmental agency in the District of Columbia.

SPEAKER_03 26:00

Okay, well, Sweet, I'm gonna ask you the question that I could also ask Mike. Have you been in that lockup in uh the DC Superior Court? And it's still the same hellhole it's been for decades.

SPEAKER_01 26:13

So I have um recently, at least for the last since COVID, there's been this great thing called stand-in attorneys, especially for C10 lockups. So it's really assisted with some of the court-appointed cases that we sometimes get where there's a stand-in attorney that covers the initial release hearing and will send you all the information. Um, however, for a lot of our private clients, they may still want to go to C10. It's still the wait's just been getting longer and longer. It's turned from five o'clock to six o'clock to we've heard stories of attorneys being there till midnight. Um, because of all the charges that are coming through, lock up, they're papering everything. Um, and then they'll decide if they're gonna drop something later on, whether they have a case or not. And so it's really unfortunate because it really jams up the system um for several reasons. One, it doesn't focus on the worst crimes that DC has, which is the violent felonies. Now you're handling the guy that is peeing on the street corner who's not hurting anyone, um, or someone that may have a small amount of a possession kind of charge of some kind of narcotics versus someone that may have, you know, a gun that's illegal. Um they're focusing on individuals that are lawfully detained and lawfully have licenses in Virginia and Maryland and maybe made a mistake about coming into DC. So I think the focus of a lot of these arrests, the uptick, has really resulted in ultimately losing focus on what I think citizens care about more, which is the violent felonies and the ones that are um a harm to society versus individuals that are perhaps made a mistake or are just in the wrong place at the wrong time. Now everybody is being arrested. Uh the thought of are they guilty or innocent is is second. Um, whether if they have a way to charge, they are charging. Um, and discretion is unfortunately not in the prosecutor's hands for the most part anymore. It's all made higher up with the supervisors. So it's really changed a lot of the optics of just practicing in the district. And I think it's made the quote unquote hellhole at Z10 even worse the last six months. Um, particularly, I think the judge's hands are tied when the government asked for a hold on everything. I mean, I kid you not, I had a client recently that was no priors licensed to carry a firearm in Maryland, in Virginia, in the district, but it had just expired inadvertently, didn't realize it, registered in DC, but everybody believed him, but they didn't care. They charged him. But not only that, at C10, they asked for a three-day hold on this guy. And the judge couldn't do anything. The judge had to grant it because of the hold that they requested. And three days later, the judge basically, you know, in preliminary hearing courtrooms was just like, all right, just call in once a month. Um, this poor guy had to go through three days in lockup. He's never been through the system ever. And for something that was an administrative, perhaps, misjudgment in the date and was trying to do everything the right way. And so a lot of cases like that are going through the system now, where in the past the government would not have asked for a hold for someone like that.

SPEAKER_03 29:50

All right. I'm gonna expand that that question, Sweeta, to the physical hellhole of the lockup in uh superior courts building, if it still is, because I haven't been to that lockup in years. The hellhole of the DC jail, which still is a hellhole. I've been there. Uh I was there only about a year ago for the last time. And you know, I I wonder why that doesn't at least uh uh uh convince many more people to watch what they do to not be there, because even federal uh defendants end up getting held there, as I understand.

SPEAKER_01 30:25

Yeah.

SPEAKER_03 30:26

Uh together with uh what just totally aggravates and irritates me, although I don't do a lot of DC cases anymore, is this attitude that I get from uh so many of the people working at the courthouse, at least with pretrial services, you know, yeah, fine, you know, if you have to be urine tested regularly, you know, what's the civil liberties uh uh problem about that? And just uh processing people through, and even with uh probation age, just process people through, never questioning the wisdom of the system, never questioning the wisdom of the sentencing uh that happens or the sentencing system or of the law. That's a biggie there, but uh at least uh take your pick or answer all of them.

SPEAKER_01 31:08

Yeah, um well, I can start with the jail. It's just as bad as you envisioned, just worse now. Um now it's longer wait times, it's harder locked down all the time, um, not enough space. Uh I mean the list just got worse, I guess, from the last from the year that you went. Um, you have to make sure you account for plenty of time to go visit your clients. Um, it's really hard for clients to get discovery. It's not as easy as just even just calling your client that's not allowed, you know, in the district. Unlike Virginia, you can call your client. Um, here you can't. Um, so there's a lot of issues there, but I think more what I would like to focus on out of the couple of things that you mentioned was uh probation, which I think does affect a lot of Virginia practitioner practitioners, Maryland practitioners, and DC practitioners, especially because we have clients that come into DC, work in DC, live in DC. We have so many complex issues, and we've come into that multiple times, particularly with our DUI clients. Um sometimes C SOSA acts like they're in charge of the judges.

SPEAKER_03 32:18

C SOSA's the probation office, right?

SPEAKER_01 32:21

Correct. And I've seen the judges even get mad. There's there's two theories. We have judges that essentially get kind of mad when the C SOSA tells them they can't do something, but C SOSA acts like they have authority over the judges. And then we have the other category of judges that kind of give C-SOSA credence to the point where they are God and the judges believe whatever they see SOSA says is correct and it doesn't matter, and they default to whatever CSOSA wants. And those are kind of like the two types of judges that we typically have in the district. I will say the felony judges tend to push back a little bit more, but there's still a little bit of credence given to them. What I see it often is I guess the benefit of the C SOSA and DC is that judges don't impose um fees for supervision. So that isn't a reason that often you may want to keep probation in the district, because for example, if you transfer DUI probation to Maryland, your client's going to be hit with supervision fees and um drug testing fees and all these fees that are not, you know, given by C SOSA in the district. That being said, they make it very, very difficult to get transferred to another jurisdiction. We had a client recently, maybe a few months ago, where we wanted his probation to stay in the district, and C SOSA fought us so hard. It's the only time in my entire life where the prosecutor was fighting with me, and the judge was fighting with me. And C-Sosa was against all of us. And at some point, the judge just got over it and just changed the entire sentence to benefit my client, but it was just like C Sosa wasn't even allowing the judge. And the judge was like, So you're saying I have a case in my jurisdiction in my courtroom, and I can't tell you to keep it here. And see Sosa's response was no, you can't make me keep it here.

SPEAKER_03 34:32

The name of this show is Beat the Prosecution. We're gonna get that to that after I asked Mike this question. So, Mike, uh you're doing uh murder cases, and are these all in uh DC or any of them retained? And if you're doing those, that means you're dealing with the U.S. Attorney's Office. So for that and the other uh uh cases you're dealing with with the U.S. Attorney's Office, how have things changed there with this current Trump administration, including with Gene uh Janine Pierrot being uh at the helm of the uh U.S. Attorney's Office in DC?

SPEAKER_02 35:06

Uh all of my homicide cases have been in DC. Uh none of them are retained, they're all court-appointed. Um, I think getting a retained homicide case in DC is a rarity because the fees that one would have to charge are pretty extensive. So there may be some people who could afford a retained attorney. Um clients that I've had have all been court-appointed. Um how has the U.S. attorney's office been? The prosecutors who I've dealt with in those in those cases, I can honestly say have been fair, they've been up front. I haven't always agreed with uh arguments they might make, legal arguments they might make, but I would always know you know what was coming. Um I think the sting or the bad effect from the Trump administration, well, one of the many bad effects of the Trump administration, and particularly uh uh Janine Pierrot, is that their methodology, their logic in terms of what makes, you know, you have to ask, like, what makes a good prosecutor, number one? And then also, what do prosecutors fear? You know, prosecutors fear losing their jobs and they fear making a bad call. They fear not making a fight, perhaps, on one defendant and saying, you know what, this defendant doesn't have a record, we're not going to ask for a hold. And then down the road, while that defendant is on release, that defendant commits a violent crime. And those are always the things that we hear about in the news. And then everybody, particularly on the Republican side of the aisle, is like DC soft on crime, DC soft on crime, where that's absolutely not the case. A judge making a release decision to release someone who started with a gun offense who doesn't have a record is basically following the law that's you know that is in place and analyzing all the factors that they, you know, that they should analyze. Um and the problem, you know, with this current administration is, and it's the same that we've seen a lot of times in in different prosecutorial offices. Whenever you have somebody new comes in there, their first attitude is we're gonna arrest everybody, we're gonna charge everybody, everybody's gonna get charged, we're gonna be hard on crime, tough on crime. And it might sound good for a soundbite, but it doesn't get to sort of the root causes of why a lot of these people are there. Now, certainly, you know, you would expect them to be tough on violent offenders and or repeat offenders, and you know, that's fine. But like Swedo was talking about to basically paper every case, like every little rinky-dink misdemeanor charge, you know, that comes through, you know, you can spend more of your focus trying to get people help because a lot of people who get arrested for these types of offenses, you know, it's not because you know they're a bad seed or anything like that, but it's because they've been in difficult circumstances in their life where they haven't had resources available to them to help them, either whether it's with mental health or with it's with its housing or with its any kind, any kind of addiction. And you know, this administration doesn't care about that, you know, unless, you know, unless you're wealthy and white. Uh, but otherwise, you know, their attitude is all these people, you know, need to need to get out of here. Like their attitude toward towards unhoused, towards homeless. Like, we're gonna get homeless people out of here, is if being unhoused somehow equates to someone who is more likely to commit a crime when you have people who you know lost a residence and maybe and quite possibly through no fault of their own, but perhaps through the you know, you know, the mortgage, you know, the mortgage industry that's basically running people out that caters to, oh, what a surprise, rich white Republicans, you know, who form, you know, the you know, the MAGA base. And, you know, these these people get tread on, you know, it's sort of like, you know, this party treads on certain types of people, makes it impossible for them to kind of just get forward in life and just earn and do what they need to do. And then if they get arrested for something, then we just get blamed for being in that situation. You know, what's you know, what's the old white man Republican response to uh, you know, somebody who's, you know, somebody who's unhoused and unemployed. Well, pull yourself up, you know, have that fighting spirit, go get a job, go get out there. And it's like, get a job. It's not that easy to get a job. It's not that easy to get a job even now, like if you have like a traffic ticket. Everyone does background checks, nobody wants to see anything. I mean, pretty much the only job you can get if you have multiple felonies on your record, apparently, is the presidency. So, other than that, you know, it's difficult. And the current administration does nothing to take that into account or to find ways to not just, you know, prosecute, sure. If they can prosecute as many as they want, it's easy to do, but also to work with them to ease off on the arrests. You know, they got these cowboy police officers out there is just arresting anybody for looking at them cross-eyed. And that's not, you know, the society that people want to live in. You know, go solve, you know, if there's unsolved homicides, by all means, go do it, you know, do your thing, you know, arrest, you know, find people, arrest them for the serious violent felonies, and then we'll see what evidence you were able, you know, you were able to come up with and and and see what we can do on that. Um, so that's kind of my uh somewhat long-winded take on uh on that entire situation. So to sum it up, the the attorneys who I have dealt with thus far who have represented the government and the homicide cases I've had, I haven't really had any, you know, any issues with. Um have I heard stories or prosecutors sort of being, you know, a little tricky with evidence? Sure, they're all out there, but I I cannot say that I have had that uh issue in any in any of my cases. It's just been straight up. They put on their evidence, I fight, you know, I fight against it, we argue against it, we clash, we battle, and that's how it goes. And that's probably how it should go.

SPEAKER_03 41:37

Yes. Sweeta, uh, how often do you go to trial? And what are your uh two or three favorite ways to beat the prosecution, knowing that prosecutors are listening, so you may not want to give up all your secrets.

SPEAKER_01 41:52

Yeah, I mean, I think it's always a balancing act on what how much to reveal uh pretrial and what strategy you have. I think there are times where I disclose more if I think it's going to result in a favorable resolution for my client that I otherwise wouldn't get. Um, I'm a big fan of mitigation packages, especially for clients where I have a lot to say. And I've I found that that works really well pre-trial. With during trial, I think it's like a whole nother game, right? Um, I it's been a while since I've been in a felony trial. I think the last case I was in were motion hearings. And so they ended up being stipulated trials either or the motion being granted, one or the other. And so we never really got to the trial phase of that. Um, for better or for worse. I guess it's great when your motion is granted, but a lot of times um what we've seen is when you file really good motions, it ultimately results in sometimes a better offer for your client. Um, I've gotten felony cases where closer to the motion date, the prosecutors offered me misdemeanor offers or, you know, really good offers that my client just can't walk away from when they're facing five-year minimum mandatories, right? Um, but I think it's a it's a balancing act, right? You need the evidence that you need. So you do have to disclose certain things and why you're requesting it sometimes. But I think that especially with stop issues, um I like to not give away my entire argument in the motion to suppress. I like to hold back on some of the argument. I may cite the case, but I won't dwell too much into it. So the prosecutor doesn't look at that argument. But I've cited the motion so I can still I've cited the case so I can still refer to it in my arguments. Um, so there's little strategies like that that I like to employ, um, especially in the motion stage. As far as, you know, trial, I think my MO is always, you know, Mike and I have different but similar cross examination techniques. I They tend to have the witnesses tend to think that I'm unalarming. So they they tend to be nicer to me and they tend to give me the information at the beginning. And so I try to really get them buttered up and on my side. And I try to make sure that they don't see me as threatening at first. And I find that they're a lot more cooperative. And a lot of times it's worked several times for me is that the witness doesn't realize that I've gotten them into a situation where they unfortunately have to give me a response that's not that they realized it too late, especially when it works with officers a lot. Um I I like using that strategy a lot. I say use sugar until you have to use vinegar. That tends to be my strategy. Um, but at the same time, I think sometimes the officers particularly can be very taken off guard when you're nice, nice, nice, nice, nice. And then all of a sudden you just use pour vinegar on them.

SPEAKER_03 45:02

Right.

SPEAKER_01 45:03

Um, and I think that's worked well for me. I think Mike has a little bit of a different strategy when it comes to cross-examination. Um, and I say this like watching Mike do cross-examination, he's extremely likable. Like you just want to believe him.

SPEAKER_03 45:20

Like one of one of my favorite uh uh cross-examination approaches is after the cop has over-exaggerated what's depicted in the incident video, then I uh maybe ask a few cross-exam questions about okay, well, this segment of the video I just watched, that's and he already said it's a true and accurate uh uh video, right? Including that section. And then I'm able to loop it together in closing and say to the judge, we can't believe anything this officer has said that's not corroborated by the video. For instance, with a DWI case, the officer said heavily slurred speech. We didn't hear it. The cops said stumbled as he got out of the uh car. We didn't see it. The cops said that uh he uh kept taking wide steps uh in and doing the walk and turn test. We didn't see it. The cops said if it if it's a refusal case, because refusal is an offense here in Virginia to do uh breath testing or blood testing, uh if if it's a civil uh refusal case. Uh the the officer said, at least in jurisdictions where the uh video runs, he says that he crystally crystal clear uh told the defendant if you don't do the uh breath or blood testing, uh these these are going to be the consequences. And and instead the cop actually confused the crap out of the defendant to make him uh unable to uh do an unreasonable refusal. Uh so with that, Michael, to what ext uh what percentage of your uh criminal defense practice is DWI defense? And how many cases do you actually bring to trial for DWI? I understand that in DC there these deferred sentencing agreements and deferred processing agreements are so common that that would reduce the number of DWI cases you bring to trial.

SPEAKER_02 47:17

I would say overall, over the course of my entire practice, DUI has probably been about 70, maybe 75% of the cases that I've had. Um, and and you are correct. They're, you know, you know, as I sort of tinted at before, prosecutors' offices, they're they're cyclical. So they go through different phases. And, you know, right around COVID and for maybe a year or two after COVID, the DC office of the Attorney General was pretty reasonable in terms of offering favorable resolutions. And when I talk to a client in a DUI case, you know, when we're talking about plea offers, I put it very simply. I say a good plea offer takes away the risk of something worse happening if we were to go to trial and lose. So if I have a client who's charged as a first offender with driving under the influence, if the plea offer is plea to driving under the influence, we're gonna reject that always out of hand. Because, and and I think uh another uh great DUI attorney who we know and who we're friends with, uh Lenny Stam, who who practices in Maryland, said if you plead guilty, you have a zero percent chance of winning. If you go to trial, your percent chance of winning increases over zero. So it and of course, it makes sense to go to trial um you know in those situations, unless the government gives you a reason not to. A reason not to was as you as you stated, is for some type of diversion agreement, a deferred sentencing agreement, a deferred prosecution agreement. Uh recently, uh the government actually has been more strict in terms of offering uh those types of diversion agreements. I haven't seen a lot of deferred prosecution agreements. Um for the listeners, a deferred prosecution agreement is where the government says, we're just not gonna prosecute your case for a while, we're gonna put it on a shelf, go do some programs or some community service, don't get arrested for anything. You come back in a couple months, if we're good, we're just gonna drop the case. A deferred sentencing agreement is a case where the government says, plead guilty to a charge. Usually it's driving under the influence, but under DC law, it is not a conviction because under DC law, you're not convicted until you're sentenced. So what we'll do is we'll just continue the sentencing date for a period of time. And then during that time, again, if you do a bunch of things, a bunch of good things successfully, then when you come back on the sentencing date, you can withdraw your plea and we'll dismiss the case. But if you don't do everything, or if you get arrested for a new offense, if you violate the agreement, then when you come back on the sentencing date, you'll be sentenced, and then you'll actually have a conviction on your record. So the attraction to that was well, you know, it puts the client's fate in the client's own hands. The client knows that a dismissal is guaranteed if a client does what they're supposed to do. And most of the time, those types of agreements are favorable versus going to trial unless you have a number of good issues you can raise. Um, lately, even doing a deferred sentencing agreement has had some pretty impactful collateral consequences, uh, mostly when it comes to driving privileges. Um, in the District of Columbia, the DC Department of Motor Vehicles, which in my opinion is the most diabolical of government agencies, and that includes the IRS, by the way, uh they will revoke your privilege to drive even with a deferred sentencing agreement, because they say a we consider a conviction to be just a plea of guilty, even though DC law says a conviction is not just a plea of guilty, it's a plea plus sentencing or a guilty finding plus sentencing. But DC DMV says, you know what, if you plead guilty, we're taking your license away. So if you're licensed to drive in the District of Columbia, then you could be grounded, like not able to drive unless you put ignition interlock in your vehicle. Um if you're licensed to drive outside of DC, then your ability to drive in DC could still be revoked. And what DC has been doing now is sending letters to outside jurisdiction. So again, most of our clients, if they're not licensed in DC, it's Maryland or Virginia. And they and we know for a fact they're sending letters to Maryland saying this person was convicted of a DUI. And Maryland says, Oh, really? Well, okay, if they're convicted, because Maryland defines conviction differently, if you're convicted, we're gonna suspend our license. So then our client has to then request a hearing at the Maryland MBA and go before them and explain actually they haven't been convicted of anything. Um and that's just with the driving privilege is, you know, there's always issues in terms of security clearances, job clearances, immigration consequences. Uh so while a deferred sentencing agreement on its face technically is a better result than just a straight conviction of DUI in a lot of circumstances, people still get treated like they were convicted of DUI, even though they weren't.

SPEAKER_03 52:49

Okay, so let's bring this back to uh the actual uh frequency with which you uh take cases to trial, and also for the DWI case, the extent to which your involvement with the National College of DUI defense uh helps you out. I mean, for me, I I go into court just uh I consider it a big favor for me, for my client, just to uh plead not guilty. I love going to trial. I mean, there could be exceptions. If my uh client who's uh caught by 10 eyewitnesses, 100 videos uh committing mass murder of 10 people is offered a jaywalking plea for $10. I think I'd have a serious talk with them if they rejected that plea offer. Uh, but prosecutors know this to the point where one prosecutor once said to me when I said, Am I irritating you? When I was trying to negotiate uh a case, he said, Nah, you don't irritate me. He said, We just wonder what makes you tick. We wonder how how you make any money. It seems like you're working all the time and defending your clients all the time and not sleeping, just the way I like it. So, uh, what's your frequency of taking cases to trial and and how how much does your involvement with the NCDD help you out?

SPEAKER_02 53:55

The NCDD helps immeasurably with uh resources, uh, just advice from other attorneys on any number of issues. Um, how often do I take cases for trial? It's it's better phrased, I think. How often do I set cases for trial? Um I set cases for trial for DUIs pretty frequently. Um, the most recent ones I had, I had two cases set for trial in July. One of them got dismissed just outright before a trial day. The other one I did go to trial over four days, and it was a more difficult case. Uh, I was a first offender. Uh, client was charged with DUI, but there was a breast score where I made what I felt like were some good arguments to keep the breast score out. There was a collision. Uh I crossed and argued, you know, best I could on everything. She ultimately was found guilty and pretty much given the same type of result that she would have received if she had just entered a plea of guilty, but we had a lot of issues to raise. The tricky thing with the District of Columbia is first offenders, unlike I think almost any other jurisdiction in the United States, except for maybe, I don't know, one or two states, a first offender charged of DUI in DC does not have a right to a jury trial. So all those trials are bench trials on very crowded calendars where it's pretty difficult to finish a DUI trial in one day. Even though you have to be there at 9 30 for a trial call, it may not start until two o'clock, and court in DC stops every day at 4 45. So the trial that I just mentioned, we had, I think, four four trial dates, and then we actually came back uh you know for the verdict. Um and the other issue is you know, you're dealing with uh a jury of one, that being the judge, and it's difficult to get judges to go outside the box on we've we over time, over the years, both Sweat and I have made creative arguments, different arguments, arguments that we believe we are right and correct, but still, you know, judges I think talk amongst themselves. No judge wants to be the first judge to throw out a case based upon sort of like a new theory. Um you know, and that makes it difficult because again, you know, you'll have to go to trial, you'll have to appeal. And I think one example of that came with the with the confrontation clause. We were, and this is back um in the early 2010s. A lot of this happened actually before Sweat and I uh even partnered up. But uh, for a period of time, the District of Columbia was using urine testing and not breath tests at all because they had issues with their breath test program. Oh, yeah, right. You remember that. You know, the person running it was basically lying about everything. So they scrapped that or reorganizing that. So instead they went to urine testing, where instead of breathing into a tube, you were peeing into a cup. And that had its own set of issues, the biggest one being that urine testing is completely wildly inaccurate. And any so-called expert who the government will call will agree on that. But we made some objectives, be some objections, because the district was just calling in their expert, the person who was running the urine testing at the time. And in light of recent case law that was coming out, and particularly the Supreme Court case of bullcoming versus New Mexico, which said that in a DUI case, if the government is going to introduce a chemical testing result, then they have to bring in the people who actually handled the sample, did the testing themselves, instead of just bringing in an expert to say, hey, yeah, I looked at all of these papers and I looked at everything and it looks good, and this is the score. Um, and that was Supreme Court law. And we were jumping up and down arguing that on every case. And the judges all, I feel like they kind of banded together and said, Well, we're not going to acknowledge this. And they came out with some cockamame opinion that said that an expert to could talk about it. They didn't need all these people coming in. And it wasn't until the DC Court of Appeals, in a case called uh was it Young versus United States, I believe, issued an opinion related to DNA testing, but said, hey, you gotta bring in the people that did the testing because, oh, by the way, it's you know, it's the law, and the Supreme Court thoughts that so that's that's kind of an example of sort of like what you have to go through to try to get judges to think differently outside sort of like established practices. And you know, we had the Supreme Court on our side, and they still weren't doing anything until the DC Court of Appeals did something.

SPEAKER_03 58:49

Right. Well, right. One one approach to beating the prosecution is using the existing case law and and moving to change it and doing the appeals. I told you both we'd go till five o'clock. We're a little later than that. I only feel fortunate that since both of you are my friends, I can keep talking to you later on about a lot of this stuff. But I I want everyone to know, well, both of you know, uh, there are a small percentage of fellow criminal defense lawyers in the area who I know are true believers, who I have so much confidence in that when I refer them a case, I know they're gonna do a great job, who I know that if I contact them about a tricky uh situation, they're gonna totally understand what I'm talking about, or at least uh not make fun of me about it. Hey, why are you taking this to uh case to trial? Isn't that stupid? Why don't you just like save your Friday? And there are there are lawyers like that who shamelessly will say that to me on a beautiful Friday afternoon. Why are you taking this to trial rather than taking that good plate? No, I'll take it to trial and win. And I really appreciate both of you so much. And I'm uh and I'm not gonna make this an online love fest too long, uh, but with that, but it is a love fest towards you nonetheless. Sweeta, is there anything you want to tell the audience that you have not already said?

SPEAKER_01 1:00:08

Um, I think we covered a lot of ground, but yeah, if anyone ever needs any help or any practitioners, feel free to give us a call, email us. I think we do better by email, but uh it's my my email is patelp brooklaw, br-u-c-k-l-a-w dot com. And um Mike's email is basically the same except it's Michael at Brooklaw.com.

SPEAKER_03 1:00:35

And Michael, is there any final words you wish to say?

SPEAKER_02 1:00:39

Yeah, just thank you so much for having us. Uh, you know, anybody who needs assistance in the District of Columbia can call upon us, me, uh, you know, and Sweda, we have, you know, different, slightly different ways in how we handle a case. But for one thing where we're similar is we're very aggressive, we're very well known, we're respected. And at least I will say when it comes to DUI cases in DC, the attorney general's office, they know who I am, and they know that I take cases to trial. And I would say that to anybody looking to hire someone, you know, especially you, uh, John, which is you want to hire an attorney who they know will try a case and not just kind of come in on the trial date and say, okay, we're just gonna plead to the information. Um, we've referred many, well, really, I would say almost all of our Virginia inquiries that have come our way, uh, you know, have gone to you. And I always say the same thing to everybody, which is there's all I say if there's only one person you need to call, it's John Katz. Here's his number. That's it. I got nobody, I got nobody else to say. And I said, if he if he can help you, he will. And if it's in, I don't know Virginia geography, so he might say it's in some county that I think is next door to you, but it might end up being like four hours away. But I'll say, hey, if he can't get there, if he can't travel there, he will know somebody who is uh who is like-minded who can help you.

SPEAKER_03 1:02:04

Well, uh, thanks so much. And I feel the same about the two of you. Everyone, you have heard from law partners Michael Brukheim and Sweta Patel in Washington, D.C. at brooklaw.com or Brooklaw.com. I guess I've been mispronouncing it all this time. You've been doing great. This is John Katza, Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. There is no other way than beating the prosecution. Thank you so much.

SPEAKER_00 1:02:34

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 beat the prosecution.com.