SPEAKER_02 0:02

Hello, everybody. This is John Katz. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. I am delighted to have today's guest. Her name is Brianna Cox, B-R-I-N-N-A, B-R-I-A-N-N-A last name, Cox. She is a public defender law in Alexandria, Virginia. And if you have been watching this show long enough, you see I've had many public defender lauras on from various jurisdictions. Why is that? For two reasons. Who knows more about defending in any courthouse than a public defender Laura? And second of all, public defenders have a place near and dear to my heart. That's where I got my start. In fact, when I was with my first employer after law school, a corporate law firm in DC, I came up with this brilliant idea because I want to do public interest type of work, especially if I can do criminal defense. I joined the National Association of Criminal Defense Lawyers and the State Criminal Defense Lawyers Association without even having to have had criminal defense experiences. This was in the early 90s. And I had people recommending to me the NACDL, why don't you consider being a prosecutor? Because at least if you screw up as a prosecutor, you're not screwing over your criminal defense client. Well, uh, well said enough, but uh how good is that when your boss is telling you to argue to keep someone held pretrial for just uh a burglary, maybe they didn't commit and task for a 10-year mandatory minimum or whatever it is for a repeat drug offender. With that, uh for a few uh one, two, three minutes or whatever, Brianna, please introduce yourself to everybody and we're gonna get right into it.

SPEAKER_01 1:45

All right. Hi everyone, I'm Brianna. As John said, I'm a public defender in Alexandria. I've been here since November 2024, so I've been there for about two years. Um I started on the traffic docket. I'm just now moving over to the GDC criminal misdemeanors docket. Um, I graduated from law school in 2023, became barred in 2024, and so this is my first job out of law school.

SPEAKER_02 2:11

Brianna, I know that numerous public defender lawyers in Virginia are true believers in the criminal defense work and representing indigenous, which is so refreshing to me because when I started in Maryland, it wasn't like that. It was more like just whatever practical practicality was to get that uh criminal uh trial experience. How about you? To what extent are you a true believer?

SPEAKER_01 2:34

I am totally a true believer. Um, I came in to law school wanting to um do criminal defense. Um, the reason I wanted to do this was I took a class on the death penalty in college. Um, and the people who taught it um managed the like Cornell Law Death Penalty Clinic. They had represented um clients post-conviction pro bono, and that kind of opened me up to okay, there's this whole world out there, and that there's this whole group of people that need representation and are the most marginalized in society already. And the government, you know, the awesome power of the government is coming down on them to take away their liberty. So after that, I was pretty set on criminal defense, and then I interned after my 2L, somewhere between my 2L and 3L years at the public defender in Prince William County. Um, and then I totally fell in love and um wanted to do that for the rest of my life. So um that's how we got here.

SPEAKER_02 3:34

Wait, you said which county were you in?

SPEAKER_01 3:36

Prince William County.

SPEAKER_02 3:38

Prince William.

unknown 3:39

Yes.

SPEAKER_02 3:39

Okay, so you went to Cornell Undergrad.

SPEAKER_00 3:42

Mm-hmm.

SPEAKER_02 3:43

Uh, where I attended their advanced, what they called an advanced place program, I told you, for entering uh seniors for high school long before you ever went to college. And you went to George Washington Law School, right?

SPEAKER_01 3:55

Yes.

SPEAKER_02 3:56

Which is where I graduated from. Who was running this clinic at Cornell at the time?

SPEAKER_01 4:02

Oh, it was John Bloom and some some woman Johnson, Sharon Johnson, Karen Johnson, something like that.

SPEAKER_02 4:14

Did you ever come across my friends Jomar Goullies over there and his wife Sandra Bab uh Sandra Babcock, who has the death penalty uh uh public interest group over there?

SPEAKER_01 4:27

Oh, cool. Nice. No, I don't know. I don't know who that is.

SPEAKER_02 4:31

Okay, we can talk about that later on. So what is it that made you decide to go to uh law school in the first place? It was by having been exposed uh as an undergrad about the death penalty?

SPEAKER_01 4:44

It was that, but also I didn't really know what I wanted to do. Um, so you know, go go to more school. Um, but I did like the um, I've always like been good at reading and writing, so I enjoyed that. Um but what really kind of got me into like wanting to do law was the class that I took before the death penalty class, um, another class in the law school called constitutional politics. And I very distinctly remember we talked about the Fourth Amendment and all the cases, and then you know, hypos, you know, saying like, oh, would this be more similar to this case or this case? I really liked that kind of analytical, um, analogous, distinguishing logic. And I was basically told like that's everything you're gonna do in law school, like as um a litigator, look at cases, compare your clients' facts to those cases, those cases, argue how it's similar or dissimilar. So um that sounded really fun to me. So I went to law school.

SPEAKER_02 5:46

And uh what was your progression with training after you joined the Alexander City Public Defender's Office?

SPEAKER_01 5:53

So I started out with basically no training. I had done trial advocacy and like mock trial stuff like that. Um, the way that I started was I shadowed first, I shadowed the attorney who was doing the traffic docket because in our office, the way that it works is when you start off, you're on the traffic docket because that's kind of a smaller set of charges that you can get to know really well. So, you know, as serious as DEY all the way down to like driving without a license. Um, so I started shadowing that attorney and kind of got a feel for the courthouse, um the prosecutors, um, the officers that tend to investigate um these kinds of offenses. And then I did two weeks supervised. So by one of our um management um upper level public defenders supervised me in court for like my first trial. Um, and they did that for two weeks. And then a little bit later, I went to public defender boot camp. So they have that twice a year. So whenever you start out, um, whenever the next boot camp is, you go to that. And that was a five-day, just like total crash course and everything. Um, Virginia criminal procedure, criminal law, you know, how to talk to a client, ethics, stuff like that. So it was that major training and then kind of just more learning along the way.

SPEAKER_02 7:18

Your office has a reputation for uh producing a lot of uh great lawyers, uh, both people who are still public defenders and not. Uh is is there something about your office you think that distinguishes uh the Alexandria office more than uh from maybe some of the other public defenders' offices for that?

SPEAKER_01 7:39

Um I'm not sure. I guess I would say it's interesting because we're a very small office. We have only 10 attorneys. Um I know like places like Fairfax and Prince William County have like 20 plus lawyers just because we're a small city. We don't need that many attorneys. So we are especially close knit. Um we see each other all the time. It's the same people. So I think that makes us unique. And I do know that a lot of people stay for a long time because they enjoy the social aspect of it and really close with colleagues, whereas in a bigger office, you might not be as close with um the other attorneys.

SPEAKER_02 8:18

What is the budget like for your office for uh uh the lawyers there to have an opportunity to go to the National Criminal Defense College's trial practice institute, as well as maybe the trial laurels college and any other uh you know top shelf national programs?

SPEAKER_01 8:35

Um, I'll pass on that. We can talk later.

SPEAKER_02 8:39

Okay, I think we've gotten answers to that maybe from some other public defender guests.

SPEAKER_00 8:44

Okay.

SPEAKER_02 8:45

Um before we talk about trial work, what do you do? Well, maybe just everyone likes you. Okay. Let me tell everybody when I see Brittany, uh sorry, when I see Brianna in the courthouse. We have a Britney, so well, but you're Brianna. When I when I see Brianna in the courthouse, I uh trust her so much to get her insight about some things that only people in the courthouse is gonna know about. And I know that she's a very likable person, at least when I talk to her. But are you willing to share any of your secrets about how you handle it when you deal with a prosecutor, a police officer, or a judge who's being unfairly nasty to you? Are you gonna pass on that one too?

SPEAKER_01 9:35

Yeah, I'll pass on that one.

SPEAKER_02 9:39

Okay, three strikes and I'm out. So let's let's talk what now. Look, I I know you and I know that your opponents are watching and not just the people on our side. What are you willing to share about pursuing justice in court in the trial uh at the trial stage or the motion stage, anything else, and include please talking about knowing the law, uh, you know, is is part of doing the persuasion.

SPEAKER_01 10:09

Yeah. So if you're in like the legal field, you know this, but a lot of people kind of don't think of it this way. There's factually guilty and there's legally guilty. So did the person do it is way less important than can the commonwealth prove it. So pursuing justice, even if we go to a trial and we lose, that person got their day in court, they got their due process, the commonwealth had to put on all the evidence and prove their guilt beyond a reasonable doubt. So the way that I see pursuing justice is holding the commonwealth to that burden. Um, in a lot of cases, um, you know, a plea offer is made. Maybe I think that if we go to trial, I can beat the plea offer. Um, or uh maybe there's one term in the plea offer that my client doesn't like. For example, like a license suspension, that would have a huge impact on a lot of people's lives. So even if we're going to trial um and losing, there's another fight at sentencing to have the least impact on the client as possible. Um what else? Oh, you talked about knowing the law. So yeah, that has been, I think, crucial to my success on the traffic docket with DUIs. There is a wealth of DUI law out there, a wealth of case law. Um, and I can't claim all the credit. There was a public defender named Daniel Weingard who put together this DUI guide and it basically addresses every issue you could have in a DUI. So, of course, like probable cause, reasonable suspicion, good stops, bad stops, um, but also like stuff you wouldn't think of. Um, like, oh, if the person had a physical inability to um blow in the machine, they were denied due process because they were denied an opportunity to produce evidence in their favor, which would be the BAC. So that like will get a DUI dismissed if you show that. Um, so my most of my success has been with the motions to suppress probable cause. Um, because often with DUIs, once the BAC comes in and it's above the legal limit, it's very difficult. Um, it's not impossible, but just very difficult to win a case at that point. So usually probable cause is the strongest argument and the best strategy to beat a DUI.

SPEAKER_02 12:33

Okay. Now uh how about this? You want to share with me whether uh any funding is made available for anybody in your office to be a members of the National College for DUI defense or its equivalent and to attend any of their programs?

SPEAKER_01 12:51

Um I've actually never heard of that, but that sounds good. I I don't know. I really don't know budget stuff, and it's kind of changing right now.

SPEAKER_02 13:00

Okay, we'll we'll talk about that. Um you have had both jury trials and bench trials, right? Yes. Okay. Now it was very interesting. One day I had this civil jury trial. My law practice for years and years has been at least 99% criminal. But way back when I had a civil jury trial, I was surprised when the judge said, I think when there was some uh I think he may have said this to the jury or during some break, he said, I'm sure the lawyers didn't get any sleep last night, all concerned about today's case. Now, am I correct that if if you weren't able to get sleep before a trial, you wouldn't get any sleep because don't you have uh trials repeated repeatedly scheduled for each week?

SPEAKER_01 13:50

Oh, without the question for me.

SPEAKER_02 13:52

Well, yes.

SPEAKER_01 13:54

Okay. I didn't know if it was a hypothetical. Yeah, um, it's it's tough with the caseload. Um, you know, people always say it's triage, but I will admit that I have lost sleep over certain trials. Sometimes, you know, you're like, okay, day before at work, I'm gonna work on this. I don't have any meetings this afternoon, I'm I'm gonna do it. And then like a client emergency pops up and you end up doing work at home. Um and yeah, I try not to let that happen too often, but in this job, it does happen sometimes. And then I make sure I'm taking care of myself after by getting, you know, catching up on sleep and all of that. But yeah, it just happens. Time is a limited resource. And some um cases, once you get into them are more time consuming than you think. Um, like an issue pops up in the body worn camera, and you're like, oh, I need to like do research on that, then that will take a lot more time. But it's often worth it if you know it plays into your strategy and can help you establish reasonable doubt or somehow otherwise win the case.

SPEAKER_02 14:57

I guess I'm gonna do some tangents, including asking, what do you do for self-care?

SPEAKER_01 15:03

Um, I would say exercise is my outlet. Um, growing up as a kid, I was always athletic while also working really hard in school. So I've kind of always had those two kind of things to go back and forth with. Um, so I like to go to workout classes, you know, if time is short. Um, and also like sometimes I'll be like, oh, I'm too tired to do whatever. So it's nice to have um a workout class scheduled that, you know, all I have to do is show up. Um and that's the main thing I like listening to music too. I was in choir in a cappella in um in college. So music is also a nice way to relax and take care of myself.

SPEAKER_02 15:47

Singing. So when I was at the Trial Our's college, everybody was required to uh I think sing a song and uh and tell a story or poem before we could finish. I did a variation of uh uh He's got the Whole World in His Hands. I think it's changed, she's got the whole world in her hands and talked about how she had that in the hands of the criminal defense lauras and everybody. Um and um how does that help? And my son, he's in the all-male a cappella group, the only all-male a cappella group over at his college. Um how does that help you give voice to yourself in court? Because I think it's very helpful.

SPEAKER_01 16:28

Yeah, for sure. Um let's see. So I took voice lessons, and I feel like just like you need to find your voice in court, it can be difficult to find your voice for singing. Like being in choirs, you're kind of taught to blend, so you're not really trying to be the loudest person or the person with like the most texture in your voice is probably the best way to put it. Um, but I distinctly remember um doing interviews for internships in um law school and was telling them about a cappella and choir and stuff like that, because it was on my um resume. And the person interviewing you was like, okay, so you're a performer. I was like, Yeah, that that's fair. You know, we do concerts and whatever. And he was like, that sounds like a perfect fit for trial work. And it kind of hit me. I was like, yeah, that that's true. Um uh I like as a kid, I was very shy. Um, I was very introverted. I still am very introverted, but um, I think singing and kind of getting that confidence to mess up in front of people, to stumble, to like miss a note made me feel more comfortable being in front of people in the courtroom and you know, stumbling over words or messing something up. Um, I don't think I would be in this job if I didn't, you know, get exposed to and get used to basically being a not like public speaking, but like being in front of an audience per se.

SPEAKER_02 18:04

Well, uh some lawyers have gotten some great results in court by actually singing in front of the jury. Uh one great former public defender lawyer I know, I can't identify her further because I don't know if she made this public. Uh she sang to the jury about uh who she was claiming was a prevaricating uh prosecution witness, just my imagination running away with me. Uh and and this was at least this was at least 15, 20 years ago when there were more people who knew that Motown song. And then uh from your native state of Texas, from Corpus Christi, my roommate from uh uh uh the trial or his college, Bubba Bob Hilliard from Corpus Christi, he said that when Dax cowered uh at his law firm did his first uh jury trial, Dax was uh uh blinded and left with almost no fingers from a terrible fire uh from some sort of methane or odorless gas. And his father turned on the engine and it just got engulfed in flames. And uh Dax was advocating on behalf of a severely injured uh client, and he sang a uh Bob Dylan song. I don't know which one it was, and Bob said that Dax didn't have a really good voice, but out of that Dax's first jury trial, it may have been his first trial at all. He got a verdict over a million or two.

SPEAKER_01 19:36

Seconds of the jury and hilarious.

SPEAKER_02 19:40

I think I think that performance, doing the performances is so important in trial. And for me, what really helps also is my exercise, you may or may not know, is the martial art of tai chi chuan. And I do it daily. I never miss a day for over 19 months. And uh my secret sauce for that is I've uh said to the world, if I ever miss a day of tai chi, I will drink prune juice online and on YouTube, and I'm terrified about drinking it, so that's worked. And we do push hands this uh Saturday for the umteenth time. I'll be doing push hands sparring at Cabin John Park over the T. They actually have a Tai Chi practice platform there. And to me, doing work, doing the trial work is like push hands. So let's say the prosecutor comes up with an idea that I'm what I'm saying, oh my gosh, how did he miss that? Or the or the opposing witness comes up with something and I never expected. Instead of chasing after them, it's using their energy against them. So I think all of us were doing trials, we had that, oh uh SH, you know what moment about what am I gonna do now? And you gotta think fast. Have you had any of those moments? And if you have, what have you done about them?

SPEAKER_01 20:57

There's definitely been a weird like a way to say something.

SPEAKER_00 21:11

I don't know, nothing really comes in mind.

SPEAKER_01 21:21

I'm sure I've had moments I just can't recall right now.

SPEAKER_02 21:25

Okay, you've done some jury trials for jury selection known as War Deer. Uh have you had any uh any experiences really uh whether it's through jury selection, closing, opening, anything we where you really have felt you've connected with one or more of the jurors.

SPEAKER_01 21:44

Um Yes, I I think so. Um, but I didn't do like the polls after, so I'm not sure how they actually felt. But um in one of my juries, I Thought I had a really good closing argument about reasonable doubt as to intoxication. And there was someone um nodding along with me and like really like zoned in. Um, but I can't really confirm if they were actually if they actually like, you know, voted not guilty or something.

SPEAKER_02 22:18

So that means it was an acquittal then.

SPEAKER_01 22:23

I don't think it was. No, it wasn't. The jury found him guilty. I think. Yeah. I don't know. I don't have a super clear like memory on that.

SPEAKER_02 22:36

I have this idea that um, you know, it's very hard in in the course of one trial, whether it's with a judge or uh or jury, uh, to turn around all of their uh morals and values to find in favor of our client, but instead therefore uh to show them that finding uh finding the defendant not guilty or with the judge even uh suppressing the evidence, that that actually comports with the judge's values. Have you uh had experience like that where you know you realize, you know, I maybe I have a tough jury here and I've got a tough judge, but I'm gonna find a way uh through their worldview to persuade them.

SPEAKER_01 23:36

I feel like I can't think of anything because if I tried to comport with their worldview

SPEAKER_00 23:51

Not what am I trying to say?

SPEAKER_01 23:54

No, I haven't had that experience and I can't really imagine a situation. Do you have an example?

SPEAKER_02 24:02

Yes. Um a now retired judge from the Alexandria General District Court, who was known for having a tremendous uh problem saying not in front of guilty. Um I saw where things were going with the trial, and it was DWI, and the person who did the breath testing was actually a very experienced police officer. And um I said to the police officer, now this was this was when they there was no videotape in the breath testing room. I said, Now you agree with me, do you not, that at one point my client took out the veneer, the the gold-tooth veneer from her from her mouth. And he said yes. And do you not agree with me that when you resumed the breath testing, this was um about seven minutes later? Yes, I got him. The 20-minute rule, the 20-minute observation rule to make sure the mouth is empty of foreign substances for at least 20 minutes. How to convince the judge, though, to give relief on this, because you know, judges can try to uh you know, sometimes don't automatically think that uh not following the 20-minute rule or anything else automatically gets a not guilty. So instead of me um using staccato uh arguments like you see, judge, that the evidence has to stay out. You have to find my client not guilty. I said, Well, Judge, you heard it from the horse's mouth. My client uh my client had a foreign substance in her mouth. She took it out, and page the top paragraph of page 22 of the Department of Forensic Sciences breath testing manual requires uh take, you know, uh a full 20-minute observation period after inspecting the mouth for foreign substances. So the uh uh, you know, there's no choice here, but but to uh what I argue is to keep out the breath test results or any alternative to give them uh little to no weight. So I I didn't harp on it real harshly. Instead, I didn't know how the judge would react to it, but you know, I I tried to ease into it. And uh her response was great. It was something like if the veneer had stayed in, I wouldn't have given any issue about the breath test results. But when the veneer came out, and I think she even talked about her experience getting dental work. I don't know how that had to do with it. She said, with the veneer coming out, that could have dislodged alcohol. Now, just because they keep out the breath test results or discount them, doesn't give you an automatic win, right? Because you have the alternative definition of DWI in Virginia, which is having consumed enough alcohol to notice affect your appearance andor behavior. It goes a little further than that. And then she said, I find her not guilty. In fact, with the same judge, I had a trial about a year to two later, uh, not long uh before she retired, maybe within about a year before. And this was a 0.18 blood alcohol level breath test, second offense charge, so facing a mandatory minimum, 10 days in jail for the second offense, plus another 10 days if found guilty of over 0.15 for a total of 20 mandatory minimum. And now, thankfully, we have the video in the uh jail, and the breath technician just went ahead and admitted that he didn't inspect the mouth because otherwise he'd have to go through the torture of my playing the video and asking a bunch of questions. And I already have the experience with the veneer thing with the judge. And um so the judge just totally kept out the breath test results, but I still have to convince her, right? That the the the uh uh uh that we're still dealing with not being found guilty of uh uh, you know, that's a really low bar, right? Having consumed enough alcohol to notice the affect the appearance and her behavior. I try to raise the bar as much as I can with the judge and jury. And she said, well, he's probably guilty, but that's not enough. So this judge who had so much problems saying, not in front of guilty, I was batting a thousand, both my trials with her or not guilty. So the idea is to accept that, yeah, you know, it's it's like Terry McCarthy. Have you ever heard of Terry McCarthy, who's this great cross-examination teacher who was for years the the chief federal public defender, Lauren Chicago? He he would depict uh uh bench trials as slow pleas, uh, which there's sometimes like that, just that often you can get uh with a jury, they got more of a fresh eye on it, they got their oath. Uh, this isn't their full-time job. Uh they you can sometimes get uh jury nullification. We're not allowed to ask for jury nullification, but it can be gotten. And uh and hung juries if we can't get an automatic acquittal. Uh so and the interesting thing is, see, if if someone's a public defender client, they're not paying anything extra to appeal if they lose their bench trial. But for the private uh criminal defendants, I don't think there are a lot of lawyers who give a free appeal. So I don't want to be letting the cat out of the bag to the process, which is they probably realize this anyway. Uh, I mean, that's just making me fight all the harder to get the the best possible results in district court. Know that a lot of my clients aren't going to want to pay uh for an appeal and then go in front of a jury. I have asked you a lot of specific questions. I think that's a good point uh for you to just chime in. Uh for instance, you know, what are one or two of the things that you like most about your job and why? Uh and uh maybe, you know, one or two examples of some of the successes you've had to the extent that that still fits in with you're not wanting to let uh let the prosecutors know too much.

SPEAKER_01 30:00

Um I think what I like most is the trial work, just like that rill, that excitement. Um again, like being introverted, I never expected to like it this much, but I have there's a certain sort of confidence when you have a good argument. Um and I don't know, just like the the feeling after I won my first trial was incredible. Um, being on the spot, um, making decisions um quickly. I just think it was really fun and really fun to because I mean I guess you're always going up against the prosecutor, but um, kind of having experiencing the adversarial process um and kind of going back and forth and doing a good cross-examination on the officer, stuff like that. Um, so that's probably my favorite thing. Um, my second favorite thing is probably the people in my office. Everyone is really nice and funny. Um, again, we're a small office, so we all kind of know each other really well. Um, and we do like social events, and I just feel like I was welcomed in. And um it's a good place to be, I would say. And then as for examples, I don't know. I guess I would say with BUIs, like the field sobriety tests are really interesting because if they don't give the instructions right, then like the instructions tie to the clues that they're looking for. Um, so I've had a lot pretty much every trial. Some some officers do it um perfectly, some officers make mistakes. Um, so it's fun to kind of impeach them with body worn camera. This actually kind of ties into your previous question about like how you like go with their worldview and like to your client's advantage. So, like the kind of follow-up or the lead up questions, like field sobriety tests are designed to assess a subject's impairment. Yes. Um you performed or you administered field sobriety tests to assess, you know, Mr. Client's impairment, right? Um and the instructions uh what did I say, or how did I say it? Um I think I was maybe like the before you give the instructions, the subject doesn't know anything about what they're supposed to do. Yes. So they are doing uh the field sobriety test solely based off of your instructions and what you've told them, yes. And then you're and then I was like um Is it your testimony that you told him to um put his hands at his sides? Um they say yes, and then I impeach them with the body worn camera. So like building up the field sobriety test just to tear them down when there's like an instructional error. Yeah, that's been fun.

SPEAKER_02 33:42

Okay. I don't know. You don't seem like such an introvert to me. So to what extent did that line of questioning come from you, or was it integrated with with what you'd uh learned from other folks?

SPEAKER_01 33:56

Um it was it was my prep. Um but you know, something that my predecessor told me when she um was passing the traffic docket down to me is that the field sobriety test instructions are so specific, like with NHTSA, the National Highway, like the agency that makes them. She was like, read this manual, it's like a printed out in a binder, it's like this thick. Um, and reading that closely and knowing um what the exact instructions are um was a big help. Um, so just taking that idea and running with it at every trial that I do, every DUI. Um, I made a chart to like track like, did they say this instruction? Okay, this instruction corresponds to this clue. Um so really looking, and body worn camera is such a blessing. I don't, I really don't know how I would like try a case without it, but just listening to the body worn camera, check, check, check, oh, that one wasn't checked, and oh, they did um, you know, uh turn the wrong way, but the officer phrased it this way and and stuff like that. Um so yeah, kind of more my execution of that idea to the extreme, um, because it really does matter when probable cause is on the line or if they refuse, and we're looking at like beyond a reasonable doubt, um, are they intoxicated?

SPEAKER_02 35:27

So uh do you have some examples of how you've gotten some success uh cross-examining the police officer on uh on their report? For instance, testimony they give that's not in their report, or things that are in their report that uh impeach what their testimony is?

SPEAKER_01 35:46

Yeah, a couple times. I think the most the most common impeachment that I'm doing with the police report is impeachment by omission. So, you know, in the police report they say odor, um bloodshot glassy eyes, field sobriety test, said he had a drink an hour ago. Then on the stand, they say all of that, but they add slurred speech. Um so then um I'll be like, you know, your police report is um designed to summarize what you have observed. It's supposed to document the most important details in a DUI. Um what you're looking for are signs of impairment or signs that they have drank alcohol, and then kind of the same thing like the building up, and then you know, being like, but you didn't say slurred speech in your report, did you? And they're like, no. Or sometimes you have to refresh the recollection. But yeah, that's that's a good one. Usually they when they try to add new things um at trials or or motions to suppress, that's where I get them.

SPEAKER_02 36:53

It cracks me up when prosecutors make some of the following silly objections to my cross-examination. One is objection leading. Yes, during cross-examination, we're allowed to leave. The next one, this was a recent objection by a prosecutor who's very experienced. I uh I said to the uh said to the cop, Do you, you know, uh, do you have your police report with you? Yeah. Uh okay, well, please bring it out because I'm asking some questions about it. I said, Do you agree with me that nowhere in your police report did you write down that my guy had bloodshot eyes? And the prosecutor said, objection, hearsay. No, because hearsay is when it's offered to prove the truth of the matter, asserted therein. I'm just saying this is a this bunch of garbage.

SPEAKER_01 37:42

Right, and it's impeachment, so it's not hearsay anyway.

SPEAKER_02 37:47

Right, exactly. So the way I got the prosecutor was I said, fine, I'm gonna get this uh this uh question answered one way or the other. And then he backed off and he said, Well, if if you ask, he said in front of the judge, and this we had a jury, but uh we did this out of the uh jury's hearing, you know, at the bench. He said, Well, if you ask this without having him look at the look at the report first, I'm fine with that. So fine. So any of the cop didn't remember, I had him look at the report. Um, and then uh, oh, how about this one? I don't know if you've ever experienced this one. It's when the prosecutor says, asked and answered during my cross-examination. And I say, Asked and answered to Beliz of I already asked the question. That was a question you asked. I get to I get to explore it myself. And then related asked and answered. This was over in Maryland, because I practice in Maryland too, although over 90% of my case are in Virginia. I had this bench trial. This was way back when when marijuana possession was still criminalized, and uh the judge would not let me cross-examine the chemist about the um uh uh the procedures she used to test the alleged marijuana. I said, judge, I'm entitled to cross-examine all the opposing witnesses, otherwise, you shouldn't consider the result. And I don't know if maybe he just wanted to go to lunch or if he had already made up his mind that he was going to quit my client because this was at the time when Marilyn had these gradations. You would face up to X number of uh weeks or months in jail if it was up to a certain number of grams and Y uh number of amount of time uh otherwise. And in saying my client was not guilty, he said, well, the the charging document is is is read to uh state one level of uh uh amount of marijuana, and they haven't proved that amount. Uh I don't know if you ever had that. It's you know, how are you gonna trust judges though? I think they they they try to give you some signals sometimes to say, you know, just stop objecting so much, but it can backfire on you because one day when I was a public defender lawyer in Maryland, one of my other otherwise most favorite judges, he said, Well, there's uh someone in the lockup that you have to represent, because we would represent almost anyone in the lockup, even if we didn't know about it. I said, Yeah, what kind of case? He said, probation violation. And they bring the defendant in. It's near lunchtime. And I said, Well, may I please talk to the uh to the defendant over in the lockup because there was no one else in the lockup. And the judge said, Why don't you talk to him here? And to me, I was saying to myself, is he giving me a signal that he's not gonna hurt my client? No, he wasn't. He, I think he just wanted to go to lunch. I don't know. So I talked to my client. We had the probation violation hearing. My client was accused of uh soon after being convicted of uh phone harassment of his ex-girlfriend uh violating the probation condition, the sentencing condition of not contacting her. He called her several times after that, the evidence said, and the judge hammered him with about 30 days in jail, 15 to 30 days in jail. So, I mean, once again, I don't care how much you even like a certain judge, uh, people are human, they have their hot button issues. For this judge, even if maybe he didn't think that he was going to hammer my client, maybe he didn't know what the allegations were, and he hammered them. And uh, if that was ever to happen again, where he would say, just talk to your client here at the at the at the uh council table, say, you know, no judge, no, I'm my client and I are entitled to talk to each other alone, apart.

SPEAKER_01 41:15

So did you talk to him?

SPEAKER_02 41:16

To the judge?

SPEAKER_01 41:18

No, to the client before.

SPEAKER_02 41:20

I talked to my client at council table. Uh and uh and the only reason I didn't go further than that to talk private wasn't that I trusted the judge. I said to my client, look, I said, uh uh, I don't know what what exactly I said, but I probably said, I can I can insist to the judge to speak in private, but I think I've got everything I need here. And um, you know, I don't think we're gonna have you testifying, but I, you know, I think I said to them, I'll I'll talk to the jud uh, you know, to the judge about talking in private. Uh well, this brings to the next thing then. To what extent do you see any judges that you deal with uh and prosecutors uh trying to treat public defender clients, indigent defendants, including the ones with the court-appointed private lawyers, uh at a lesser level than the uh than the retained uh the retained criminal defendants and and the private practicing lawyers who are retained.

SPEAKER_01 42:23

I actually don't think I've seen that. And if I did, I would pass anyway.

SPEAKER_02 42:30

Exactly. Now let's talk about our clients. One of the things that gave me so much uh uh that was so rewarding for me to be doing public defender work was to help to lay uh level the playing field. Uh, you know, with the indigenous defendants, they don't have money to get the best possible uh lawyers. And there's this uh misconception, perhaps in other states more in Virginia, that uh, you know, if you're a public defender lawyer, maybe you're not a real lawyer. If you're a public defender lawyer, maybe you went to law school for one year less than other people. Well, for those who don't realize who are listening to this, uh some of the greatest lawyers are the public defender lawyers, some of the greatest private practicing lawyers were previous uh public defender lawyers. I could never uh stomach the idea of uh doing prosecution, uh, never have and never will. But let please talk to us, though, about uh any of the challenges you have uh dealing with your clients, whether it's because, you know, if they are indigent, then maybe that's caused them some additional uh difficulties and even returning your phone calls or meeting with you. And you know, what is the what's it like uh meeting clients over that jail in Alexandria? Because unless it's changed since I went there last time, that's a bizarre setup for me. I think we only have uh what is it like three or four meeting air uh meeting rooms? Maybe they have some additional ones for the public defenders, I think I've heard.

SPEAKER_01 43:56

Um yeah, so I think they have the Like actual designated attorney client rooms on like the four floors. So like when you check in with the control one and then the elevator, that area are like the official attorney rooms. But then they kind of use some other rooms in booking that have like a table and chairs or like a couple stools in there for attorney client meetings. I usually go at night. So I've it's not crowded. I've never gone where it's like I have to wait and I don't get to see my client. But that's probably a function of, you know, having court in the mornings and then meetings in the afternoon. So I just by default go in the evenings. So I don't think I've seen the worst of it. I've always been able to get a room.

SPEAKER_02 44:45

Okay. I do want to clarify, you know, the problem when I did that probation violation here that I was telling you about what the judge said, when I talked to your client right here, and have you experienced this one, which is, you know, if I didn't do that hearing that day, uh, my client was probably going to be held on no bond and do a probation violation hearing later on. Do you ever experience the situation where you know your client is being held on on no bond or a bond they can't pay? And they just go ahead and, for instance, take a plea deal that they wouldn't have other otherwise taken, for instance, if they weren't being detained uh pending their trial date.

SPEAKER_01 45:21

Right. Yeah. Um that's that's I would say more common on the criminal misdemeanors docket because most people in traffic aren't held unless it's like a DUI second. But yeah, it is, I I say like, try not to let this influence you because this, you know, is a conviction. This is gonna go on your record. Um, and especially if it's like a failure to appear or something, those have greater implications than like your average conviction. But um also I'm not the person sitting in jail. So if someone wants to plead and get out, um, then I will recommend that they wait, see if the witnesses show up. But if they want to do it, it's their decision. So um that's an interesting tension um created by that situation.

SPEAKER_02 46:08

What kind of support does your office have for making sure that uh you're minimizing the uh immigration risks to your clients from their cases?

SPEAKER_01 46:21

So we have um just in the VIDC generally an immigration resource attorney. So this is someone that's hired um by basically the folks in Richmond to she's an immigration attorney, and basically we send um consultations to her. So um she also creates a lot of good resources that you can kind of do it yourself, see what the immigration consequences are, like you know, this charge plus this kind of status, um, to know what to watch out for. Um, but sometimes you truly have wacky cases where it's not there's something different with them, um, or they have uh maybe they're from a country that recently lost TPS, something like that. So she's a great resource to reach out to and be like, hey, this is the situation, these are his charges. I don't know, just like tell me. And um, she's really great. She'll like write a memo about that and write about what um dispositions you should get, what to avoid. Um, so that's really helpful. We're not doing it all by ourselves.

SPEAKER_02 47:28

This is a uh a staff attorney with the uh the Virginia Individu Indigent Defense Commission?

SPEAKER_01 47:35

Yes.

SPEAKER_02 47:36

Oh, that's cool. What's her name?

SPEAKER_01 47:38

Yeah, Ashley Wormling.

SPEAKER_02 47:41

Wonderful. I should have her on the show then. Um and what kind of uh support does your office have uh with investigators, mitigation specialists, and other uh other assistants beyond uh uh legal assistance staff?

SPEAKER_01 48:01

Yeah, so we um when I started the office, to my knowledge, like in the past, um, didn't have a paralegal. So I started with a paralegal um who does um research, like watches body worn camera um for us, gets restitution receipts. Um we've always had two investigators um and we would kind of be split up, like, okay, your default is to go to this person, your default is to go to this person that help a lot. Um to get like surveillance footage or going to someone's address to see if they live there is really crucial for the people who we have no contact with or we never got a phone number for. Um, and then we recently just got another paralegal position. So we're trying to figure out how we're gonna utilize her because she's bilingual. The original um paralegal only speaks English. So thinking about how to kind of divide tasks between um our Spanish-speaking clients, like those cases and the needs of a bilingual um paralegal for certain things and you know, not others. So we do have those um supports um and we have one mitigation specialist, she is wonderful to help us with the competency stuff and of course the sentencing.

SPEAKER_02 49:20

Okay, language. How many of your uh public defender lawyers at your office or uh speak good Spanish and any other uh second languages?

SPEAKER_01 49:32

Um I don't know about like other languages other than Spanish. Let me actually do a count. Okay.

SPEAKER_02 49:46

Let's include Spanish.

SPEAKER_01 49:48

Okay. Um I guess we have to say kind of levels of Spanish. So like fluent, um probably three. Um I like took Spanish in high school and college, so I can understand most of it, unless they're talking too fast. Um, but it's like really hard for me to speak, so I don't really count that. Um, some people have like limited Spanish. We have one guy who um meets with like has a video call with someone in Mexico every week to like practice his Spanish. Um but my understanding is he is kind of an intermediate speaker. Um, but yeah, we use interpreters a lot. Um, we use the court interpreters that helps for one of the bilingual staff in our office.

SPEAKER_02 50:40

My experience with interpreters in the courthouse is at least here in well, we're all all the courthouses I go to. I mainly go in Northern Virginia, is that the Spanish interpreters tend to be very good. Uh, but if it's less common languages, it's sometimes fair to middling. So what I do is um uh I talk to my clients about their option of uh uh us getting the cream of the crop interpreter and having them pay it for it. And me just uh, you know, letting the court know in advance we're gonna have an interpreter, maybe even get an order uh approving that. Uh and there's one particular language in mine that I'm not gonna uh say just because of the sensitivity of it, uh, where I just found out that there was a much better uh language interpreter company than the other one, and we snagged them and they were they they they were much better. But I I've I've had interpreters who are as meek as anything and they they are not interpreting everything that's going on. Look over to them and say, uh, I don't have to speak your language to know you're not you're not interpreting everything. Please do that. And on the flip side, I sometimes tell, you know, Spanish is my third language, but I soaked it up so well with my former law partner, Jay Marks, who speaks better Spanish than anyone else. And I was with him for 10 years. And not better than anyone else, but better than most Latinos. He speaks Spanish. And I'll say to the Spanish uh uh interpreters, I'll say, when I speak to my client alone, please don't interpret. Well, here is an interesting one. Even though the Spanish interpreters tend to be very good, recently, and this wasn't the first time, I had a Spanish interpreter interpreting in Spanish to my client what I was saying in Spanish. I said, something's not connecting here. I'm speaking Spanish to my client. I don't know why you're speaking Spanish back. If I say something, you know, please let me know. But I I think uh Brianna, this this involves this relates a lot to a lot of people that are just not comfortable in court, including these interpreters. Now, this gets me to the next one then. What approaches do you take? I know that one it's not one size fits all, but what approaches you take to preparing your clients and other people to testify in court to deal with your direct examination and the prosecutor's cross-examination?

SPEAKER_01 52:57

Um, I haven't really done that, so I'll pass.

SPEAKER_02 53:01

Okay. Mental health. To what extent are you learning how to deal with people with uh mental health issues, or is uh that's something you haven't come to yet?

SPEAKER_01 53:13

Not yet.

SPEAKER_02 53:16

Okay, now we have three minutes left here, and I think this is a good time for me to say, please tell anything, say anything you want to say that you haven't already said, and emphasize anything or and or emphasize anything you haven't that you want to emphasize. Including about things like, hey legislators in the county stuff, uh equalize that pay to the public defenders and the pros with the prosecutors.

SPEAKER_01 53:46

Yeah. Um should have thought about what I wanted to say beforehand. I don't know. I guess I guess I'll say kind of referring back to when um you talked about how some people don't think public defenders are like real lawyers, um, and public defenders have that stereotype of meet meet'em and pleatem. I think the public defenders' offices in Northern Virginia do a great job of breaking that stereotype. Um, as you probably know, John, um people think highly of our office and of our attorneys. Um, so it's been really satisfying to be a public defender, not only be a public defender, but also work with people who are also really passionate and fighters for their clients. Um, so I'll just say that. Um, I like being a public defender. Uh and yeah.

SPEAKER_02 54:46

Then that seggs into the next one. Then what do you say to people who want to uh go into a criminal defense career in Virginia and to become public defenders? Let's go to that. How hard is it for them to become a public defender in Virginia and what's that process?

SPEAKER_01 55:03

Yeah, so um since Virginia, Northern Virginia has the most um demand, like those offices, because a lot of people are like from the DMV area, they want to stay there. Um, you just kind of have to keep going to the website and looking for jobs. Um, I got really lucky when the spot opened up here in Alexandria. It was you know good timing for me. Um, but don't be afraid to you know go further out of Northern Virginia because they need people out there, they have a lot of open positions, and you know, anywhere you can be a public defender, you're gonna do a lot of great things and learn um a lot of trial skills and um um yeah, help whatever community the office is situated in.

SPEAKER_02 55:53

And the website you're talking about is for the Virginia Indigent Defense Commission?

SPEAKER_01 55:58

Yeah, vadefenders.org. And then there's a careers tab in the top right.

SPEAKER_02 56:04

Everybody, uh, I'm just so delighted that uh Brianna's talking to us today. The majority of the public defenders I invite to join on the show do come on. But I've had one from one county who said I didn't he didn't think that I'd find anybody in that county uh from his public defender's office who would come on. And I'm not gonna name the person, but one of Brianna's colleagues was very hesitant about doing it. Uh, but I think it's just so important for me and our listeners to hear from the public defenders who else but the public defender lawyers really have their fingers on the pulse of what's going on in the courthouse. Who else other than public defenders and maybe uh a certain percentage of uh the private bar uh are are doing a vast majority, if not all of their cases of criminal defense. I'm blessed that it's 99% of the work for me. Brianna, I appreciate it immensely. And this hour that you've taken here, I know this is an hour you could have been helping your other clients, but I think this has helped tremendously to all of us, criminal defense lawyers. I really appreciate it. This is John Katz. This is Beat the Prosecution because there is no other way. I am a criminal defense and DUI defense lawyer here in Fairfax, Northern Virginia. Thanks again, Brianna. Stand by.