Women Criminal Defense Attorneys: Lori Voepel Wins Appeal for Woman Who Spent 22 Years on Death Row on Egregious Prosecutorial Misconduct

Attorney Lori Voepel, from Phoenix, Arizona, won a stunning appeal last week for Debra Jean Milke, who spent 22 years on death row for the alleged murder of her 4 year old son. The Arizona Court of Appeals ordered the dismissal of murder charges against Milke and agreed with Voepel that to conduct a retrial would amount to double jeopardy. The Court was extremely critical of the prosecutors’ failure to turn over evidence during Milke’s trial about Detective Saldate who had a long history of misconduct and lying. The case was largely built on the detective’s testimony that Milke had confessed to him in spite of the fact that it was not preserved by recording or in writing. The Court called the prosecutors’ actions “a severe stain on the Arizona justice system” and stated that the failure to turn over the evidence “calls into question the integrity of the system and was highly prejudicial to Milke.”

The Huffington Post detailed the appellate twists and turns starting from the federal habeas to 9th U.S. Circuit Court of Appeals that resulted in the conviction being reversed in March of 2013. Listen here to Voepel discussing the 9th Circuit’s ruling last year.

The 9th Circuit cited numerous instances of now-retired Detective Saldate committing misconduct in previous cases, lying under oath, and violating suspects’ rights. The federal appeals court went as far as asking the Justice Department to investigate whether he had committed civil rights violations. Thereafter when the prosecutors were preparing for a retrial the detective refused to testify and asserted his Fifth Amendment right, which the trial judge accepted. When the State appealed, the court’s ruling was reversed after both State and Federal authorities said they would not prosecute him. Finally, the last appeal resulted in the Arizona Court of Appeals agreeing that a retrial would amount to double jeopardy. Some news reports have indicated that the County Attorney plans to appeal to the Arizona Supreme Court. In September of last year Milke posted bond and was released from prison after spending close to 25 years in prison to await her retrial and the appeals the followed.

This case is yet another example of the insidious nature of Brady violations. Here the prosecutors had evidence that went directly to the credibility of the main witness against the defendant and rather than follow the law, they chose to break the law. Thankfully in this instance Lori Voepel was able to demonstrate that Brady evidence existed but wasn’t turned over. This kind of case is a prime example as to why we, as trial attorneys, need to remain vigilant about Brady and continue to shine a bright light on the damaging effects of Brady violations. Congrats to Lori Voepel and her tireless fight for justice for her client. Bravo!

Women Criminal Defense Attorneys: What’s Happening that Matters to Women Lawyers

Today I’d like to call several interesting articles and developments regarding women in law to your attention.

I loved reading this article about The 39 Most Iconic Feminist Moments of 2014. Nothing short of inspiring that more and more women are speaking out in support of feminism. I simply can’t believe we let our culture decide that “feminist” was a bad label.

On a more disturbing note, a female criminal lawyer in New York was recently denied a trial delay based on a request to postpone the trial due to her high-risk pregnancy. The hearing relating to the request got a lot of media attention, and Deborah Misir, the pregnant lawyer, had to appear by phone due to her condition. The New York Times called the hearing tumultuous at points. The Judge ultimately denied the request because there was a second lawyer who could handle the case and finding that the right to counsel of choice was outweighed by the co defendants right to be tried quickly and the need to try the case once for judicial efficiency. Both Misir and her husband were visibly upset and argued that there was obvious sexism occurring in the process.

The ABA Commission on Women in the Profession is a great resource for women lawyers. Check out the ABA Current Glance at Women in the Law from July 2014 and become more educated on how women fare statistically in the field. Also read The Goal III Report published February 2014, which is an Annual report on Women’s Advancement into Leadership Positions in the American Bar Association. Finally be sure to look at the Call for Nomination for the 2015 Margaret Brent Women Lawyers of Achievement Awards that are due by December 15th. This is how the awards are described: “The award was established in 1991 to recognize and celebrate the accomplishments of women lawyers. Each year, this award honors five outstanding women lawyers who have achieved professional excellence within their area of specialty and have actively paved the way to success for other women lawyers. These women demonstrate excellence in a variety of professional settings and personify excellence on either the national, regional, or local level.”

If I am missing something we should know about please let know, and as always I am looking for information and assistance with the following:

  • Specific Cases that women criminal lawyers are handling
  • A mentor or outstanding lawyer that you think should be interviewed
  • How you would define a “Great Defender” as a woman criminal lawyer

I also welcome your thoughts on how we could enhance this blog. I would love to hear from you!

Women Criminal Defense Attorneys: Marie Henein Representing CBC Radio Celebrity Charged with Sexual Assault

Celebrity CBC Radio Host Jian Ghomeshi has been charged in Toronto, Canada, with four counts of sexual assault and one count of overcoming resistance by choking. Ghomeshi was the host of a popular CBC Radio show called Q. Last month, as multiple allegations began to surface, his show was canceled. The allegations have quickly ballooned into a media circus with approximately fifteen women coming forward who have made similar accusations. To make matters even more challenging for the criminal lawyer representing Mr. Ghomeshi, he wrote a 1500 word statement on Facebook after the CBC canceled his radio show saying they were making a moral judgement of him for enjoying consensual “rough sex” and BDSM. He also filed a lawsuit against CBC before dropping it earlier this week.

Since then he has wised up and hired famed Toronto lawyer Marie Henein, who colleagues have described as a fearless and brilliant lawyer and “as fine a lawyer as this country has.” Some news articles have described Henein and her firm as looking like they are straight out of an HBO TV Drama. But Henein is very much the real deal. She is one of the most respected criminal lawyers in Canada and has represented a number of high profile defendants.

The CBC article goes on to describe a lecture she gave in 2010 at the University of Windsor law school where she spoke about the anatomy of the defense narrative. She said that “the importance of developing your narrative starts from the moment the client walks into your office.” “It drives everything that you do, your analysis of the law, your comments to the media, your approach with experts and witnesses. It defines your cross-examination and your examination,” she said. “Each question you ask, you have to advance your theory. Each witness and each exhibit, each conversation you have with the Crown, is about advancing the fabric of the defense narrative.”

There is no doubt that Marie Henein is a true advocate. She couldn’t be more right. A true defender understands that there is no time off for an advocate. You are always advocating your client’s story and narrative. And she set the tone early in Ghomeshi’s case by making it clear to the media they would not be trying their case before the media but only in Court. The only chance she has to overcome the media circus surrounding her client’s case is to distance him from it as quickly as possible.

The media attention surrounding the story has also ignited a conversation in Canada, as have other similar stories in the United States, about violence toward women. And as is typical in this business, people often ask how a woman criminal lawyer can represent someone who is charged with violating other women. The answer is simple, we are advocates first. There is only one focus when you are an advocate… your client.

It is so exciting to see Henein and other women criminal defense lawyers in Canada taking center stage in the criminal defense field. I will certainly be watching and will keep you posted.

Women Criminal Defense Attorneys: Thankful for Lawyers Who Never Give Up

This week, two men who were wrongly convicted of murder were released after serving 39 years in an Ohio prison. The men were convicted based solely on the eyewitness testimony of a young child who testified that he observed the murder. Years later the now-adult witness recanted and testified that he in fact never witnessed the murder, and that he was threatened by the detectives that his parents would be arrested if he didn’t testify against the men.

One of the men released was Ricky Jackson, who was 19 at the time of the conviction, and was sentenced to death with two other men charged for the murder, the Bridgeman brothers. Jackson is now 57 and has spent all of his adult life behind bars for a crime that he didn’t commit. When he walked out of prison he said “there aren’t words in the English dictionary to describe how I feel.” The Ohio Innocence Project took up the case and said that Jackson was the longest held U.S. prisoner to be exonerated. Jackson was originally sentenced to death but the death sentence was vacated due to a paperwork error. The co-defendants, the Bridgeman brothers, remained on death row until Ohio declared the death penalty unconstitutional. One came within 20 days of being executed.

It is so easy in this job to feel defeated. But reading a story like this gives me hope. It reminds me why we do what we do. It reminds me there are people counting on us to fight for them against all odds. It reminds me that we have a responsibility to stay vigilant for the people whose futures we are privileged to protect. This Thanksgiving, I want to give thanks for the Innocence Project and for lawyers all across the country who keep fighting against all odds when everyone else has given up.

Women Criminal Defense Attorneys: Let’s Succeed “Like a Girl”!

I came across a great video campaign created by Always. It was created to address the fact that many girls experience a dramatic drop in self confidence during their developmental years, in part because of seemingly minor issues like the derogatory use of the phrase “like a girl”. The video struck a chord with me, and if you haven’t seen it, take the time to watch:

Women Criminal Defense Attorneys: Yates Case Argued Before the Supreme Court

Last week, the Supreme Court heard argument in U.S. v. Yates, which addresses the use of the Sarbanes Oxley destruction of evidence statute to prosecute a Florida man relating to the destruction of fish. Yes you read correctly… fish.

John L. Yates was charged in federal court in Tampa Florida under the Sarbanes-Oxley’s “anti-shredding provision” for destroying fish when he was stopped and it was discovered that he had 72 red grouper, a protected species, that were under the federal 20-inch limit, on board his fishing vessel. He was cited, the fish were boxed up, and he was instructed to bring them to the official when he docked. When he did, the box contained only 69 fish. One of the crewmembers later stated he was instructed by Yates to throw three fish overboard. Yates’ attorney filed motions arguing that the Sarbanes-Oxley statute only applied to the destruction of documents and not to fish, which were denied. Yates went to trial and was found guilty. He was sentenced to 30 days in jail but was facing twenty years in prison. Yes, you read correctly… twenty years for destroying three fish.

His lead counsel is the Federal Defender for the Middle District of Florida, Donna Lee Elm.Shewas quoted as saying “This is a statute relating to records, including tangible objects related to records. A fish does not contain records. One cannot make a false entry in a fish.”

Read the Scotus Blog entry titled Justices Take the measure of a fish in plain English, which is a great summary of the intense questions and comments from the Justices. For once I was cheering Scalia on as he peppered the Government with questions like, “What kind of mad prosecutor… would ask for twenty years in prison for destroying fish?” We all have had the misfortune of dealing with absurd cases in our careers but I must admit this one takes the cake. What an absolute waste of governmental resources to prosecute this man in this instance.

Stay tuned for a decision in June. Whatever the holding, Yates will have a profound impact on our criminal justice system. If the Supreme Court upholds the application of this statute in this instance, the use of what has become commonly known as the “anti-shredding provision” of Sarbanes-Oxley will have endless applications.

Women Criminal Defense Attorneys: Let There Be Tears

I just came across an article about a woman criminal defense attorney from Michigan, Cheryl Carpenter. Carpenter got a ridiculous amount of media attention for becoming emotional when arguing for leniency in the sentencing of Theodore Wafer, who was convicted and sentenced for the second-degree murder of a young girl who he claimed he shot in self defense. USA Today and New York Times noted that she cried, and one of the articles went so far as to say that she “wept”. I was stunned that the fact that a seasoned litigator who poured her heart and soul into fighting for a man accused of second degree murder and shed some tears was worthy of a story. The case received national attention throughout the trial and during the sentencing as well.

Carpenter was so exhausted and emotionally drained after the case that she made a decision to close her office and take a year sabbatical to focus more time on her young kids and family. Anyone working in the criminal defense trenches understands that need. This is a tough job that takes its toll on you emotionally and physically. She is blogging about that decision here. And then the decision to take time off became news worthy and she was interviewed by the Detroit News about the case and her emotional reaction during sentencing.

What both amazed and angered me was how badly she was made to feel about becoming emotional during the sentencing. She was quoted in the Detroit News as saying she was horrified upon reflection that she had cried. She talks in her blog about feeling shame about this fact, but in fairness she also discusses trying to understand why there needs to be shame associated to lawyers showing and feeling emotion. Now, that is the worthy discussion.

I was so struck by the comment of her being horrified that I took the time to find the argument to get a sense of her emotional reaction. Did she break out in a sob? What was so horrifying? I had to see for myself.

Much to my surprise her emotional reaction was restrained and professional, and she certainly wasn’t weeping. Her plea for the man that she represented was eloquent, powerful, and passionate. In all honesty I have gotten far more emotional than that on behalf of a client. There was nothing shameful about it. Why would any client want a lawyer that has no feeling for them or the gravity of their situation?

Lawyers who robotically represent criminal clients without feeling or regard for what they are going through are the ones who should feel embarrassed. Not Cheryl Carpenter. She did a beautiful job for her client and I personally want her to know that I thought her showing of emotional was needed and necessary. And I can’t help but wonder if there would be the need for so much discussion about the tears if she weren’t female. Would it have been equally worthy to keep discussing this fact if she wasn’t an emotional female lawyer? Regardless of the reason, I say let there be tears when we represent our clients and let us not be afraid to show them when it is appropriate.

Women Criminal Defense Attorneys: Current Happenings for Women Criminal Lawyers

Women criminal lawyer groups and criminal defense organizations continue to create opportunities for women to connect, support, and learn from one another:

The DC Women’s White Collar Defense Association is holding a luncheon today October 29, 2014 at 12:30pm hosted by Crowell & Moring, 1001 Pennsylvania Avenue, NW, Washington, DC. It will be a great opportunity to network with women in the field. The two previous events organized by the DC group have been a “who’s who” of powerful women lawyers, featuring Supreme Court Justice Elena Kagan and SEC Chairwoman Mary Jo White. To learn more about the Women White Collar Defense Association click here.

NACDL’s 10th Annual White Collar Seminar will be held in Washington DC from November 5 through 7th, with the Fall Board meeting being held the morning of November 8th. It is always a terrific seminar and if you are a white-collar practitioner, it is a must-attend seminar. The NACDL’s Women’s Initiative has organized a networking lunch on November 7th at a local restaurant called Mio Restaurant, 1110 Vermont Avenue NW, Washington, DC which is very close to the conference location. For more information on how to RSVP see the agenda here.

NACDL just released a new CLE DVD called Women Defenders: The Best of the Best featuring some of the best women defenders in the country sharing their experience and knowledge. The DVD is a collection of live seminar lectures from the women who received the highest ratings from seminar attendees. In recognition of Breast Cancer Awareness Month, a percentage of all the proceeds will be donated to the Breast Cancer Research Foundation.

There are many opportunities for women criminal practitioners to get involved in the ABA Criminal Justice Section. I am honored to be serving as co-chair of the Defense Function Committee with Jon Sands this year. One of our stated goals is to support “Women and Diversity: The face and color of the legal profession is changing. The defense function must make every effort to reflect and incorporate the change in the legal profession. Women are increasingly over half of law school graduates. They must be brought into the fold, and provided with the support, and opportunities that see them achieve leadership roles in the criminal defense field and in local, state and national bars. Diversity encompasses race, ethnic background, sexual orientation, culture and also age. The criminal defense function must do a better job of ensuring diversity.” And there are plenty of other opportunities for women criminal lawyers to become more engaged and connect with other women throughout the country through the ABA Criminal Justice Section: There is the Women in Criminal Justice Committee and the Women in White Collar Subcommittee of the White Collar Crime Division.

Get engaged and involved, you won’t be sorry that you did. And I hope to see you at either one of the NACDL events or the next ABA Criminal Justice event.

What Makes a Great Defender: Advice from the Foxhole

The traits that make a great defender are listed in no particular order, because depending on the case, the order of importance varies. I haven’t included traits that are universal, such as “always be prepared” because that goes without saying. Also, I am only providing nine, because ten is what you expect, and as a criminal defense lawyer, I always want to go with the unexpected!

1. Good sleep habits! This is no joke. The patience, energy, creativity, tenacity, and resiliency necessary for the great criminal defense lawyer are qualities that are sapped by not enough sleep. Of course, everyone needs sleep, but a criminal defense lawyer is in the foxhole every day, and life in the foxhole is emotionally and physically draining. A good night’s sleep prepares you for battle. Also, try this trick: go to sleep thinking about a difficult problem in your case; wake up with the answer. While you sleep, your brain is billing!

2. The ability to rely on others: all lawyers are control freaks and criminal defense lawyers are the most controlling of all. It’s no mystery: so much can go wrong, so much is at stake and we have so little real control. But every successful criminal defense lawyer I know has someone who has their back: a partner, an associate, a paralegal, or a secretary. For my friends who fly solo it can be their office mate, or if they are a member of NACDL or an affiliate, their colleagues on the listserv. Criminal defense work has a million sensitive decision points – you need to get advice, feedback and sometimes, just a reality check.

3. The Double Whammy: the ability to see the forest AND the trees. This is one of the many life lessons I learned at NCDC when I was a baby defender: overall themes are crucial to every stage of the game, from investigation to trial, and even to appeal and habeas. On the other hand, your defense theory relies on every detail lining up: your theory is only as good as your facts, and as we all know, facts are stubborn things.

4. Conviction: when I was a young defender I realized that I was the only person in the court room who believed what I believed (including my client!) and the process of persuading others to come over to my view of things was only possible if I could argue with conviction. When you litigate with conviction, you are believable — and the fact finders, whether judge or jury, can “hear” your arguments.

5. Credibility: I’ve never gone wrong staying on the high road no matter how low the prosecution goes. Judges like it, juries respect it, and clients who don’t appreciate it are better off in somebody else’s office. Also, when you are on the high road, it is often possible to require your adversary to stay up there with you.

6. Time management practices that provide you with the mental space to properly research and ponder your legal issues and your case. In the olden days, we used to go to the library, take out books, and read cases in hard copy. Sometimes, other lawyers would wander in and talk about your case with you. It was the most wonderful creative process and it didn’t include a cell phone or a blackberry. You need to be able to create that space for yourself now, and that’s a time management issue. Try saying to your client: I will get back to you with an answer tomorrow. It feels great and a client can understand that their problem is important and complex enough to require real thought.

7. Patience and resilience: cases sometimes progress poorly in the beginning, but that doesn’t mean they’ll end up that way. Be patient with the process, with your clients, and even with the prosecutor. When things go wrong, don’t despair; when obstacles arise, go around them. We start out with the facts and the law against us, with a dearth of information, and a well-armed and well-informed adversary. Big gains are often made incrementally and you need to accept and be prepared for that.

8. Care about your client. Caring about my clients keeps them on my mind so when I’m shopping, commuting, gardening, etc., I’m thinking about my client’s problems. The more I think, the more I get good ideas. Over the years, it’s been those “good ideas” that have created opportunities for success and good results. Also, the cared-about client is the client who can be patient and supportive, rather than undermining your good work.

9. Creativity and tenacity: solutions to difficult problems don’t reveal themselves easily. You need to be willing to try ideas that seem counter intuitive until you get to the right one. And don’t give up – keep thinking and trying, because that’s what you do when liberty is at issue. This comes back to where we started: a good night’s sleep: when something goes wrong in my cases, if it’s my fault, I wake up with a sick feeling in the middle of the night. When I’ve tried everything I can but I still get a bad result, I don’t lose sleep over it, because tomorrow is another day in the foxhole.

Women Criminal Defense Attorneys: Why Women’s Initiatives Matter

This week I received an email from Paula Henderson, an attorney and a fellow NACDL board member and I wanted to share it with you. She does a wonderful job of identifying the very specific challenges that we face as female criminal defense attorneys – and she reminds us of why it’s so important for us to continue to get together, build relationships, and form networks with fellow women criminal attorneys. I hope you find it as moving as I did!

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I was in a boutique last week and a piece of costume jewelry caught my attention. Imprinted on a piece of decorative metal attached to a leather bracelet were the following words: STRONG WOMEN, May We Know Them, May We Raise Them, May We Be Them. These words struck many chords with me. My daughter’s face immediately came to me. She, with all her nine-year-old enthusiasm, charm, and wit, looked at me as I measured myself against the standard embodied on that piece of costume jewelry.

Then, my thoughts turned to the strong women I have known. Some of the strongest women I know are relatively new to my life, having met them through NACDL over the last couple of years. They are some of the finest legal strategists and litigators in the profession of criminal defense law. Female criminal defense lawyers are a different breed. And in our individual towns and communities, we are also a very rare breed. The field of criminal defense is predominantly male and finding female colleagues with whom to commiserate in this particular arena proved challenging, UNTIL I began participating in NACDL.

Women like Ellen Brotman – a skilled listener and analyst, Susan Bozorgi – a fighter who knows why she fights, Elizabeth Kelley – organized, thorough, and fiercely focused, Melinda Sarafa – deadly in diplomacy in a courtroom or boardroom, and Lisa Wayne – the sword and shield personified with the ability to command and captivate an audience. These women, and so many more like them, fill the working ranks of NACDL. And I am honored to serve alongside them.   I have learned from them, been encouraged by them, and most importantly, I have been inspired by them.

The women of NACDL hail from different backgrounds. We have different religious beliefs and different political beliefs. Some of us are parents. Some of us are not. We live in big cities and small towns.   We do not boast. We are not arrogant. We are resolute in our belief that we have been entrusted with protecting our clients. We listen to their stories. We absorb their fear, desperation, and anger. We hold their hands, hug their necks, talk to their families, and earn their trust. Our clients’ struggles become our own. We go as far and as long into their battles as the battlefield before us allows. And we do it day in and day out usually in heels. Sometimes, we struggle to meet the demands of the oaths we swore while meeting the other demands that life places upon us. We get fatigued, frustrated, and burdened, but one thing rings true of these strong female criminal defense lawyers – We will rise.

Strong female criminal defense lawyers refuse to be victims of a system, a society, or a negative mind set. We summon our strength, skills, and intellect and carry on. The motions will be argued, the pleadings will be drafted, the research will get completed, and the cases will get tried. Beyond that, we are grateful to receive a heartfelt “thank you” or a “nice job” by a colleague. Then, it’s on to the next client, the next pleading, the next hearing, and the next trial. That may sound like drudgery to some, but to us, it is a life fueled by high ideals like freedom, forgiveness, hope, and human compassion. And every once in awhile, we may get an unexpected but much appreciated boost of encouragement like the one I received when I overheard someone telling my daughter how her mom saved a man’s life today.

So, here’s to all those strong women who are criminal defense lawyers. May you always be strong and may each of you experience the privilege of saving someone’s life. Thank you for your legacy.