Reflections From The Past Year of Criminal Defense Practice: Lesson Two

Reflections From The Past Year of Criminal Defense Practice: Lesson Two

Last week I offered my first lesson gleaned from defending clients in 2016:  investigate faster and more thoroughly than the government.  It’s time for Lesson Two:  File better written work product than the government.

You can win or lose a case based on the quality of your written submissions to the court—from pretrial motion practice through trial, post-trial motions, and appeal.  I can’t exaggerate this point:  courts notice good work product.  It must be cleanly argued, compliant with formatting and length rules, properly cited, supported by declarations, and directly on point.  Many judges, especially in state court, see a steady stream of written filings that are, in a word, half-assed.  Producing a high-quality piece of legal writing takes time, effort and skill.  We take pride in our written work at Brown White & Osborn LLP.  We don’t submit sloppy, half-baked briefs.  Good writing gets results.

I have an example.  Last week I mentioned the case in which the District Attorney charged a client with kidnapping and rape.  We were able not only to get the charges dropped, but ultimately to obtain the very rare remedy of a judicial finding of factual innocence.  An effective motion for a finding of factual innocence requires setting out every piece of evidence in the case and all the legal inferences and argument that follow.  It’s not easy to prove that no reasonable jury could find the client guilty based on the evidence.  I worked for a long time on the motion, which ultimately required 25 pages of argument with 400 pages of exhibits.  It was a roadmap for the Court to follow in analyzing the evidence.  Its object, as in any persuasive brief, was that the judge can easily find the evidence supporting each factual claim.  For example, “Surveillance footage confirms that the vehicle was at such-and-such intersection at such-and-such time.”  The brief should make it easy for the court to flip to the time-stamped surveillance photo.  There’s no mystery here; it just takes time, effort, and organization.  I drafted the brief and sent it over to the prosecutor.  I asked for feedback: “Anything you want to add?  Any facts you think I left out?  Let me know and we’ll add them.”  There was no response.  I filed it.  The prosecutor was busy and asked for extra time to respond.  I agreed.  The government filed its opposition, but did not include any exhibits and did not cite to any of my exhibits.  In other words, the government’s opposition did not include a single supported reference to a specific fact.

When we went to court, the judge was not pleased.  “The defense motion cites all this evidence.  Why didn’t you cite any?”

Here are some excerpts from the transcript:

THE COURT (to the prosecutor): That’s your position, and yet you didn’t refute anything in the factual assertions by the defense in his motion…. I mean, there are some factual assertions in the motion that you didn’t say, “Hey, wait a minute. The transcripts don’t reflect this.” And you gave me the transcript; so where am I going to see a discrepancy between the facts as related by Mr. Mason in his motion and the facts that would be necessary for me to find that there’s not justification for finding factual innocence?

The prosecutor, seeing which way the judge was leaning, asked for permission to submit a “supplemental brief.”  Here’s what I said:

MASON: Your Honor, may I respond?


MASON: As I think the Court indicated, the 400

pages of evidence that I submitted is the totality of evidence

in this case. It includes all the police reports. It includes

all the transcripts and the interview. Secondly — and then

I would like to get back to the law — with respect to the People’s comment that the People

would now like to submit for the briefing, I submitted this

entire package to the People last spring after the prelim. That

was when I put it together for the first time prior to the

People’s decision not to proceed. I then put together this

motion in July and gave it to the People at the end of July, and

I spent the months of August and September speaking with the

People about this motion, discussing it, offering the People a

chance to stipulate to it, which, to be honest, I think the People

should have done. I offered to set a date at any time that would be

convenient for the People, and when I did file the motion, I set it

out more than a month. I set it out more than a month to give the

People ample time. So I think at this point it is not appropriate for

the People to say, “Well, maybe there’s something else that we’d like

to say. Give us a chance for a supplemental briefing.”


And here’s what the Court said:


THE COURT: Just to obviate the need of you continuing

down that line, I have no intention of asking for additional

briefing. You’re correct. The filing was timely. The

opposition was timely. The reply was timely. Everything is

here that should be here. If the People were going to take

issue with your underlying premise in your motion, they

should’ve done so in their opposition.

The Court then asked the prosecutor if she had referenced any specific pieces of evidence in her brief:


[The DA]: Well, I know with my reply there are

not referenced sections.

THE COURT: I didn’t think there were. I didn’t see


[The DA]: There are not, and I think the People

assumed that the Court would go through it because — I mean,

you’re saying that somebody is factually innocent. You have to

base that on the police reports and the preliminary hearing

transcript, and I don’t think that the Court can just rely on

defense counsel’s selected references.

I don’t think it gives the Court a full opportunity to

review the facts presented in this case because another judge

listened to the facts presented and made a ruling that there was

sufficient evidence, and, I think, by picking and choosing, that

the Court isn’t giving enough attention to all the facts.


THE COURT: Actually, I’m not. That’s not the case.

The case is that Mr. Mason cited specific facts in his brief

that you haven’t refuted…. And again my response is: If there

were facts that you could cite to and didn’t cite to but should have,

those would be in your opposition.


The prosecutor then asked to have the hearing postponed. The Court said no.


THE COURT: So you want Mr. Mason to have to drive back out from LA

for another motion when he filed this one timely and you had the opportunity

to respond and you didn’t basically refute any of the factual assertions?


THE DA: Because I — I — the purpose was to —

I guess my assumption was that the Court was going to read the

reports and read the transcript, and I — I mean, Mr. Mason’s

position is obviously such that he wants this motion to be

granted, so he’s going to include facts to support that; right?

So — but the decision is based on the totality of the evidence,

and that’s why in these motions everything gets submitted like

the police reports and the preliminary hearing transcript, and

so — maybe wrongfully and I will apologize to the Court — I

assumed that the Court would read the transcripts and the police

reports; and this is my first time doing this motion, and I

apologize to Your Honor.


MASON: I did want to make one brief comment in

response and that is that when I submitted this entire package

to the People — this was in July, Your Honor — not only did I

give it to them ahead of time so that we could discuss the

motion and I hoped that they would stipulate, I also said

expressly multiple times, “If you have anything that you want to

add to this, please add it and I will add it.” As the Court knows, I

spent a lot of time in [the prosecutor]’s position on that side of the

bench, and I don’t want an incomplete record either. I want justice. I want the

same thing the People want. The only other caution I would give

to what the People, I think, are suggesting is this: I spend a

lot of time in front of federal courts of appeal, and there’s a

comment I heard many years ago that, I think, is applicable

here. An attorney stood up and said to a court of appeal panel,

“Well, you just have to read the whole record and you’ll see

that my opposition is correct.” The response was — I think, quite

applicable here — “Counsel, if there’s something you want us to see in this

record, put it in your brief.” And the People simply have not

done that and I have.

THE COURT: And I frankly agree with you.


The lesson here is simple: when you submit written work product to a court, you’d better be prepared to defend it when you walk in and stand up in front of the judge.  Never assume the court will do your work for you.

Caleb Mason

Caleb Mason

Caleb Mason is a partner with Brown White & Osborn LLP. He is a former federal prosecutor, and handles a wide variety of civil and criminal litigation. He has authored numerous scholarly publications on criminal and constitutional law, and is a frequent media commentator on criminal-justice issues. He was recently appointed to the Police Commission for the city of Claremont, California.
Caleb Mason