U.S. Third Circuit Court of Appeals Reverses Murder Conviction for Failure to Present Cogent Defense

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Third Circuit Court of Appeals has decided the case of Workman v. Superintendent Albion SCI, et. al., holding that trial counsel’s failure to present a cogent defense based on the actual evidence presented at trial constituted the ineffective assistance of counsel. The Court found that because defense counsel’s entire defense was based on facts which were not at all based on the evidence presented by the Commonwealth, defense counsel was ineffective in defending Workman.

The Facts of Workman

In August 2006, Workman’s co-defendant shot the victim during an accident which occurred in Philadelphia, Pennsylvania. Hearing the shots, the defendant found the victim and co-defendant and then proceeded to shoot at the co-defendant a total of eight times. One of these bullets ricocheted off a solid object and struck the victim in the chest. The victim also had been shot by the co-defendant. Unfortunately, the victim died as a result of his injuries. According to the assistant medical examiner who testified a trial, either of the two bullets that struck the victim could have caused his death.

Workman and the co-defendant were charged with first-degree murder. Prior to the trial, the Commonwealth offered Workman a plea bargain of twenty years of incarceration in exchange for a guilty plea. Workman rejected this offer because, according to trial counsel, he could not be convicted for killing someone who was already dead. This theory was problematic because the facts did not support trial counsel’s theory because it was unclear as to whether or not the victim was still alive when Workman’s bullet struck him.

What is Transferred Intent?

Despite the undisputed fact that Workman did not intend to kill the victim, the Commonwealth proceeded on the theory of transferred intent and argued that Workman, in firing at the co-defendant, had intended to illegally kill the co-defendant. Therefore, his intent to kill co-defendant transferred when his bullet struck the victim. At trial, the medical examiner would testify that the wound to the victim’s chest, caused by the ricocheted bullet fired by Workman, was “much more immediately fatal,” but that the other bullet fired by the co-defendant could have caused death. Despite the evidence to the contrary, Workman’s defense attorney proceeded under the theory that the victim was already dead when Workman’s bullet struck him. Further, Workman did not present any evidence at his trial. Additionally, his trial counsel’s opening statement was five sentences long. The defense lawyer simply stated that the defense did not plan to present any evidence.

After the conclusion of the Commonwealth’s case, Workman’s trial attorney made a motion for judgment of acquittal, arguing that Workman could not be convicted of killing the victim because the victim was already dead. Workman’s trial attorney did this despite the fact that the evidence of record did not support this claim. The medical examiner had specifically testified that Workman’s bullet could have been the cause of death, and no one testified to the contrary or otherwise rebutted that testimony. The trial court denied trial counsel’s motion. Undeterred, trial counsel made the same argument during closing argument to the jury. Unfortunately for Workman, the jury was not persuaded, and it convicted Defendant of first-degree murder. The jury acquitted the co-defendant. Workman received a mandatory sentence of life imprisonment without parole. He filed direct appeals that were ultimately denied, and after his appeals were resolved, he filed a Post-Conviction Relief Act Petition alleging ineffective assistance of counsel.

Workman’s first PCRA petition was denied. Notably, in this petition, his PCRA lawyer did not allege that his trial counsel failed to present a realistic defense or that he provided incorrect advice that led Defendant to reject a plea offer. Instead, his PCRA attorney alleged that trial counsel’s only failure was in not requesting a jury instruction that indicated that the transferred intent doctrine also applied to Workman’s claim of defense of use of force to protect a third person. This was a bad claim for a PCRA because the jury instruction had actually been provided to the jury.

Habeas Petition

Workman then filed a pro se habeas petition to the Eastern District of Pennsylvania. In his petition, he alleged that because of trial counsel’s ineffective assistance, he rejected a guilty plea and did not testify. Defendant’s habeas petition was subsequently denied by the federal district court, and he then appealed to the Third Circuit. Although not addressed in this article, a considerable portion of the Third Circuit’s opinion focused on the procedural issues and whether or not Workman’s petition could be heard at all because of his failure to raise the issues in his PCRA petition. The Third Circuit held that the PCRA lawyer was ineffective in failing to raise these issues in his PCRA petition. Therefore, Workman should not be penalized for the lawyer’s ineffectiveness and could proceed on the merits.

What is Ineffective Assistance of Counsel?

In Gideon v. Wainwright, the United States Supreme Court held that if you are charged with a crime, you are entitled to an attorney. In Strickland v. Washington, the United States Supreme Court held that a defendant is entitled to a constitutionally adept attorney. In other words, if a defendant’s attorney is so bad, it is possible that the defendant’s Sixth Amendment right to counsel could be violated. In Pennsylvania, if you wish to proceed with an ineffective assistance of counsel claim, you must file a PCRA petition (as the defendant in this case did). Over the years, both Pennsylvania and Federal courts have made it relatively difficult to prevail on these claims. The courts give great deference to the trial attorney’s strategy. Nonetheless, if a petitioner can show that his claim has arguable merit, no reasonable basis existed for counsel’s action or failure to act, and the petitioner suffered prejudice as a result of counsel’s error, then he or she may be successful in getting a new trial.

Third Circuit Holds that Both the PCRA and Trial Attorneys Were Ineffective

In Workman, the Third Circuit was merciless in its criticism of Workman’s trial and PCRA attorneys. In regards to his PCRA attorney, the Court stated “it appears that [PCRA] counsel’s claim was that trial counsel was ineffective for failing to request a jury instruction that was actually given. This is the epitome of a doomed claim.” Because he did not raise any of the obvious and legitimate claims that should have been raised, the Third Circuit found that he was ineffective. Consequently, because defendant’s PCRA counsel was ineffective, he was still eligible for relief despite the procedural failures of his PCRA and habeas petitions.

The Court then addressed his trial attorney’s failures. The Court stated that “counsel’s utter and complete failure to test the Commonwealth’s case with appropriate cross-examination of [the medical examiner], his failure to present witnesses…in support of his position, or to adapt his argument to the testimony in evidence” rendered him ineffective. Further, the Court also held that his counsel “acted as not an advocate of is client but of his theory” and that he “fail[ed] to understand what was happening in the case in which he was ostensibly participating.” As such, because Workman’s trial counsel failed to adapt to the evidence that was presented at trial, he was ineffective. Workman will receive a new trial.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

Third Circuit Court of Appeals: Unnecessary 23-minute Extension of Traffic Stop Requires Suppression of Gun and Marijuana

Zak Goldstein - Criminal Lawyer

The United States Court of Appeals for the Third Circuit has decided the case of United States v. Clark, holding that police violated Clark’s rights by questioning him and the driver of the car he was in for 23 minutes about subjects unrelated to the initial purpose of a traffic stop. The Third Circuit held that the trial court properly granted Clark’s motion to suppress a gun and marijuana found in the car because police impermissibly extended the stop for longer than was necessary to investigate the motor vehicle code violations that led to the stop. 

The Facts of Clark

Clark is an excellent example of how police body camera footage dramatically changes the analysis of routine police searches and seizures. In Clark, police in New Jersey stopped a minivan because the driver was using his cell phone while driving, did not have his headlights on, and had an obstructed view. The police asked to see the paperwork for the vehicle. The driver handed over his license and insurance card, but he could not find the van’s registration. He said the van belonged to his mother, and he offered to call his mother and ask her if she knew where to find the registration. The officer told the driver that the stop was for the three traffic violations and asked whether his license was suspended. The driver said it was not. The officer then asked if the van belonged to the driver’s mother, and the driver confirmed that it did. 

After speaking with the driver, the officer returned to his police car to run the paperwork. He confirmed that the driver’s license was valid, that the driver had a criminal record for drug charges, there were no outstanding arrest warrants for the driver, and the car was registered to a woman with the same last name and address as the driver. The officer then went back to the van and asked the driver about his criminal record. He asked whether the driver had been arrested, for what he had been arrested, and when was the last time he had been arrested. The driver confirmed he had been arrested for drug charges, most recently in 2006. The officer continued questioning the driver as to such things as where he was coming from, whether he and any warrants, and again how many times he had been arrested. 

After questioning the driver for a few minutes, mostly about his criminal record, the officer asked the driver to step out of the vehicle. The driver did so, and the officer then began asking him about Clark, the passenger. After asking a few questions about Clark, the officer walked over to the passenger’s side of the van and asked similar questions of Clark. The officer then returned to the driver and accused him of lying. He then said he smelled marijuana coming from the passenger’s side and asked Clark to get out of the car. Clark complied. The officers told him to turn around for a pat-down, and Clark then told the officers that he had a gun. The officers searched Clark and recovered a gun and a small amount of marijuana. 

Body camera footage showed that police had questioned the two men for about 23 minutes. Had the footage not been recorded, officers likely would have been able to describe the questioning as a “brief encounter,” and Clark would have had much more difficulty establishing what happened that led to the search.

The Motion to Suppress 

After police arrested Clark, the United States Attorney’s Office adopted the case. A federal grand jury indicted Clark for possession of a weapon as a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). He filed a motion to suppress the gun and the marijuana, arguing that police had impermissibly prolonged the stop beyond its original purpose without the necessary reasonable suspicion or probable cause. The District Court granted the motion to suppress, finding that police had no real basis for extensively questioning the driver about his criminal history and that the officer had no reasonable suspicion to investigate other criminal matters beyond the traffic violations. 

The Federal Appeal 

After the District Court granted the motion to suppress, the United States appealed to the Third Circuit. The Third Circuit affirmed the trial court’s decision on appeal. The Court noted that even when a stop may be lawful at its inception, as the parties agreed in this case, a stop may become illegal as it progresses. In Rodriguez v. United States, the United States Supreme Court recently held that an initially-valid traffic stop may become unlawful when it lasts longer than is necessary for police to complete the mission of the stop. The authority for the seizure ends when tasks tied to the mission are or reasonably should have been completed. In order to prolong a stop beyond that point, a police officer must have acquired additional reasonable suspicion or probable cause during the investigation to justify additional investigation and a lengthening of the stop. 

When police pull a suspect over for a traffic stop, the mission of the stop is to address the traffic violation that warranted the stop and address related safety concerns. This could include deciding whether to issue a ticket, checking the driver’s license and for any outstanding warrants against the driver, and inspecting the vehicle’s registration and insurance. These tasks are all part of ensuring roadway safety. Police may also take steps that are reasonably related to officer safety. However, not all investigation during a traffic stop qualifies as part of the traffic stop’s mission. For example, extensive questioning of the occupants of a vehicle, as occurred here, requires independent reasonable suspicion beyond the observation of a motor vehicle code violation. 

Here, the extensive questioning of the driver regarding his criminal record and where he was coming from had nothing to do with the purpose of the stop. The questions were entirely unrelated to whether he had a driver’s license, insurance, and registration, and they had nothing to do with whether he was lawfully in possession of the car. The driver was cooperative with the officers, he provided proof of insurance and a valid driver’s license, he did not have any outstanding arrest warrants, and the police were able to confirm that the car belonged to the driver’s mother. Accordingly, the police had no basis for believing that the driver should not have been driving the car. Once police confirmed that all of the paperwork for the car was valid, they were required to either issue a ticket or let the car go. They had no authority to then turn to Clark, the passenger, and question him. By doing so, they unconstitutionally extended the length of the stop. Therefore, the District Court properly granted the motion to suppress the gun and the marijuana. This is a great case for individual privacy rights as the Third Circuit has now held that even a relatively short 23-minute stop can violate a defendant’s rights to be free from unreasonable search and seizures.

Facing criminal charges? We can help.

If you are facing criminal charges or are under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

PA Superior Court: Commonwealth May Introduce Expert Testimony on Dynamics of Sexual Violence and Victim Responses to Sexual Violence

Zak T. Goldstein, Esq. - Philadelphia Criminal Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Cramer, affirming the defendant’s convictions for sexual assault and indecent assault. The Superior Court not only held that there was sufficient evidence to convict Appellant, but that the trial court did not abuse its discretion when it allowed the Commonwealth to introduce expert testimony about the dynamics of sexual violence, victim responses to sexual violence, and the impact of sexual violence on victims during and after being assaulted. The Superior Court also affirmed the trial court’s denial of his motion to introduce DNA evidence that showed the complainant had sperm from two other males on her underwear.

Commonwealth v. Cramer

The complainant testified at trial as follows: The complainant met the defendant at a bar in Centre County, Pennsylvania. After meeting at the bar, the complainant and the defendant went to the defendant’s apartment along with the complainant’s roommate. While the complainant was in the bathroom, the defendant entered the bathroom and took of his pants. He then began to penetrate the complainant from behind.

The complainant told the defendant that “he didn’t want to do that.” The defendant did not stop until the complainant “turned around and told him that she didn’t want to do this again and that [she] wasn’t on the pill.” The defendant then asked complainant to engage in oral sex, and the complainant agreed to do so. However, “[s]he stopped giving him oral sex and told him ‘you don’t want this. I don’t want this. This is going to end badly for both of us.’” The complainant’s roommate testified at trial that she heard the complainant say to Appellant “no stop, you don’t want to do this.”

The complainant left the bathroom and eventually left the apartment with her roommate. When they left the apartment, the complainant met a man in the hallway. He testified at trial that the complainant “appeared rattled” and that he inquired if she was okay. The three then went into the man’s apartment so that the complainant’s roommate could use the bathroom. While she was in the bathroom, the complainant told the man and his girlfriend what had happened in the defendant’s apartment. After the roommate was done using the restroom, the two left. They then caught the bus, and this is when the complainant told the roommate about what happened.

Police arrested the defendant, and prosecutors filed charges of Sexual Assault, Indecent Assault, Rape by forcible Compulsion, and Involuntary Deviate Sexual Intercourse by Forcible Compulsion. At trial, the Commonwealth called an expert who testified about how “the manner in which a victim’s response to sexual violence may be counterintuitive.” The defendant attempted to introduce DNA evidence relating to the complainant’s prior sexual contact. Specifically, the defendant attempted to show that there were three contributors of sperm on her underwear. The trial court, however, precluded this testimony based on Pennsylvania’s Rape Shield Law despite the fact that the complainant told hospital staff that she had not slept with anyone two weeks prior to this incident. The defendant testified at trial that this was a consensual sexual encounter. Nonetheless, the jury found him guilty of Sexual Assault and Indecent Assault. The defendant appealed his conviction to the Superior Court.

What is the Rape Shield Law?

On appeal, the defendant argued that he should have been allowed to introduce the DNA evidence that showed the complainant had sperm on her underwear from two other males. Pennsylvania’s Rape Shield Law, 18 P.S.A. § 3104. governs the admissibility of evidence of a victim’s sexual conduct. Generally, it prohibits the introduction of the complainant’s prior sexual history. Its purpose is to prevent a trial from shifting its focus from the culpability of the accused toward the virtue and chastity of the victim. It is designed to prevent a defendant from simply attacking a complainant on the basis of his or her alleged promiscuity as whether or not any given complainant has had sex with other people standing on its own is not a defense to a rape charge. Courts have been mostly consistent in holding that the introduction of evidence relating to a complainant’s prior sexual history is not relevant when the issue in a case is whether consent existed.

At the same time, defendants have a right to cross-examine their accusers under the Pennsylvania and United States Constitutions. Therefore, appellate courts have recognized that the Rape Shield Law must yield to a defendant’s right to cross-examine on relevant topics. Consequently, Pennsylvania courts have created a balancing test that considers whether the proposed evidence is relevant to attack credibility, whether the probative value outweighs the prejudicial impact and whether there are alternative means to challenge credibility. If a defendant seeks to introduce evidence, he or she must first file a written motion with the court and include an offer of proof as to what the evidence is and why the evidence should be admitted. This is known as piercing the Rape Shield. If the court is satisfied with these reasons, then the court will order an in-camera hearing and make findings on the record as to the relevance and the admissibility of the proposed evidence. It is worth noting that on appeal, an abuse of discretion standard applies and thus it can be very difficult to prevail on appeal on the basis that the trial court improperly prohibited the introduction of this type of evidence.

Expert Testimony in Rape Cases

A Pennsylvania law, 42 Pa.C.S.A. § 5920, allows the Commonwealth to introduce expert testimony in sexual assault and many child abuse cases. An expert may testify about “the dynamics of sexual violence, victim responses to sexual violence, and the impact of sexual violence on victims during and after being assaulted.” Notably, the expert cannot testify as to the credibility of the witness. This is significant because courts have overturned convictions when the expert does so.

However, before the court will permit an expert to testify, the Commonwealth may have to show that the witness is in fact an expert. Further, where the Commonwealth seeks to introduce a “novel” form of science, then this science must comply with the Frye standard. The Frye standard requires that the methodology underlying the novel scientific evidence must have general acceptance in the relevant scientific community. The trial court is not required to conduct a Frye hearing any time a party seeks to introduce scientific evidence. Instead, it is only required when the trial court has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a conventional fashion in reaching his or her conclusions. The opposing party must demonstrate that the expert’s testimony is based on novel scientific evidence, i.e. that there is a legitimate dispute regarding the reliability of the expert’s conclusions.

The Superior Court’s Decision

The Pennsylvania Superior Court affirmed the convictions. The Superior Court found that the trial court did not abuse its discretion when it denied the introduction of the DNA evidence. This is notable because the the defendant could not even use this to impeach the complainant’s credibility. As stated above, the complainant told hospital staff that she had not slept with anyone prior to this incident. Despite the DNA evidence contradicting this statement, the Superior Court still denied the appeal. The Superior Court reasoned that this was not relevant given the Appellant’s argument that this was a consensual sexual encounter. Thus, the only issue was whether the complainant had consented. The fact that she had likely slept with other men did not show whether she had consented or not.

The Superior Court also held that a Frye hearing was not necessary to determine the admissibility of the Commonwealth’s expert testimony. The Superior Court stated that the defense failed to make an initial showing that the Commonwealth’s expert testimony was based on novel scientific evidence. In his Motion in Limine, the defendant argued “the testimony of [Commonwealth Expert] is likely to contain opinions based on the human behavioral sciences of psychology, human development, and science.” Therefore, he did not directly assert that the Commonwealth’s expert’s testimony was based on novel science. Additionally, the Superior Court gave great weight to the expert’s firsthand experience with victims and her own research. Consequently, this appeal was denied, as well. The Court’s reasoning in this regard highlights the importance of making an adequate record when challenging the admissibility of evidence in the trial court. The defendant here offered no evidence that anything about the expert’s testimony was novel; therefore, the court did not have to hold a hearing.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or are under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

SORNA Update: PA Superior Court Finds Trial Court Must Reduce Megan’s Law Tier of Registrants Who Had Tiers Retroactively Increased

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has issued an incredibly important decision for Megan’s Law registrants who found their registration requirements and terms increased by Pennsylvania’s SORNA law. In Commonwealth v. Fernandez, the Court held that trial courts have the jurisdiction to and should reduce Megan’s Law registrants’ registration tiers to the tier that was in effect at the time of the plea. This means that if you initially pleaded guilty to or were found guilty of a Tier I offense for a registration period of ten years and later learned that you would have to register as a Tier III offender for life, you may be able to obtain relief by filing a Petition in the Court of Common Pleas which heard your case. This decision is a no brainer – obviously, the Pennsylvania State Police should not be able to retroactively increase the punishment associated with a conviction. However, until this decision, it was unclear how someone affected by the Supreme Court’s decision in Muniz which found that SORNA could not be applied retroactively could obtain relief or if Muniz even applied retroactively.   

Fernandez is the decision of an en banc panel of the Superior Court, meaning it is binding on all other panels unless reversed by the Pennsylvania Supreme Court. In Fernandez, nineteen Megan’s Law registrants filed identical Petitions to Enforce the Plea Agreement or for a Writ of Habeas Corpus in the Court of Common Pleas of Philadelphia. Each of the defendants had pleaded guilty to charges involving sexual offenses prior to the enactment of Pennsylvania SORNA’s statute on December 20, 2012. Under the previous version of Megan’s Law, two of the defendants pleaded guilty to crimes which did not require sex offender registration at all, and the remaining defendants had to register as Tier I offenders for ten years.

These cases were all unrelated, but there were similarities in terms of the plea bargains. In exchange for the guilty pleas, the Commonwealth withdrew various other charges which would have triggered lengthier periods of Megan’s Law Registration. At sentencing, each defendant was informed of whether they would have to register, and if so, for how long. All nineteen defendants subsequently violated their probation and were sentenced either to new periods of probation or incarceration.

When they were re-sentenced, the defendants were told that the new SORNA law increased their registration requirements – meaning some were now required to register for 15 years, some for 25 years, and some for life. SORNA drastically increased the punishments and Megan’s Law consequences for many sex offenses, converting crimes that did not require registration such as Indecent Assault (M2) into Megan’s Law crimes and increasing the term of registration for many offenders. It even required registration for some crimes which did not involve sex acts. 

Because each of these defendants had pleaded guilty in Philadelphia, they filed the petitions in the Philadelphia Court of Common Pleas. Each defendant challenged the retroactivity of SORNA to their cases and argued that it violated the plea deals that each had made with the Commonwealth. The trial court denied the petitions, finding that the defendants were not entitled to specific performance of the negotiated plea agreements because the defendants had violated the terms of the agreements by violating their probation. The defendants all appealed to the Pennsylvania Superior Court.

The Superior Court reversed the decision of the trial court. It found that the required periods of Megan’s Law registration were an implied part of the negotiations in each case. Further, the law on the enforcement of plea deals is well-settled. Although a plea agreement occurs as part of a criminal case, it remains contractual in nature and therefore must be analyzed under contract-law standards.

In evaluating whether a plea deal has been breached, the court must look at what the parties to the deal reasonably understood to be the terms of the agreement. When the Commonwealth makes a promise as part of a plea deal, the Commonwealth must live up to that promise. Here, the Commonwealth promised certain terms of registration in exchange for the guilty plea. Therefore, regardless of whether the defendants violated the plea deals by violating their probation, the Pennsylvania Supreme Court’s decision in Muniz prohibits the retroactive application of SORNA. Likewise, the legislature responded to Muniz by amending the SORNA statute to clarify that the previous registration terms which were in effect at the time of the offenses should again apply. Therefore, the Superior Court held that the defendants should be subject to the original periods of sexual offender registration and conditions imposed at the time of the plea bargains, if applicable.

This decision is incredibly helpful to those who have had their Megan’s Law Registration tiers retroactively increased. It also establishes that trial courts have the jurisdiction to re-classify offenders following Muniz. Previously, it was unclear whether defendants seeking relief would be barred by the jurisdictional and time-limit requirements of the Post-Conviction Relief Act and when those time limits would begin to run. The Superior Court here concluded that courts always retain the power to correct an illegal sentence. Because the Supreme Court found that SORNA is punitive and part of a criminal sentence, the trial courts retain the power to correct an improper order to register as a sex offender because the registration is part of the criminal sentence.

Facing criminal charges? We can help.

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients. We are experienced and understanding defense attorneys with the skill and expertise to fight even the most serious cases at trial, on appeal, and in Post-Conviction Relief Act litigation. We offer a complimentary 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a defense lawyer today.