Criminal Court Procedure

The following is not intended to serve as legal advice, but rather as a reference for information about protests and demonstrations in the District of Columbia. Specific legal questions should be directed to the National Lawyers Guild or a licensed attorney. This information applies only to the District of Columbia. Different laws and practices apply in Virginia and Maryland.

General Information

The rather unique legal status of the District of Columbia (DC) is reflected in our penal system, which is largely under federal control. The vast majority of criminal offenses are prosecutor by the US Attorney for the District of Columbia. The Office of the Attorney General for the District of Columbia retains jurisdiction over a small number of criminal offenses, which includes a few protest-related charges contained in the traffic code.

The vast majority of criminal cases in DC are heard in the DC Superior Court. In many cases, the prosecutor also has the option of bringing in the case in the Federal District Court for the District of Columbia However, in practice, the US Attorney’s Office only charges a small number of demonstrators in federal court and there are usually exacerbating circumstances that led to that decision.

Information about cases pending in DC Superior Court can be found in their online database. The database can be searched by defendant name or case number and includes information such as the name of the defendant’s attorney, the charge(s) that have been filed by the prosecutor, whether there the court entered a contribution order, the upcoming court dates in the case, pending motions, and the outcome of hearings that have already occurred. In order to access or print documents that have been filed in the case, persons must go to the Criminal Clerk’s Office on the 4th Floor of the DC Superior Court (500 Indiana Ave NW) and use the public terminals. Bring your own paper.

Obtaining a Criminal Defense Attorney

The court automatically assigns each defendant on the docket a court-appointed attorney. DC has a unique criminal defense bar that is comprised of the DC Public Defender Service and nearly 200 court-appointed (CJA) attorneys who handle almost all of the criminal cases in the DC. The public defenders are only assigned to defendants facing felony charges. Therefore, most persons arrested during a demonstration will be assigned a CJA attorney.

The Defender Services Office (DSO), which is a division of the Public Defender Service of the District of Columbia (PDS), can tell a defendant who their attorney is and how to contact them. DSO’s number is (202) 824-2830.

The court will sometimes order a defendant to pay a certain amount towards their own defense. Before making any payments, a defendant should ask their lawyer about whether a “contribution order” has been entered in their case and whether that order can be reduced or vacated.

If a defendant has a disagreement with their court-appointed attorney that cannot be resolved, the defendant may request the court to appoint a new attorney. It is not uncommon for defendants to have problems with their attorney, such as not being able to contact them or having a strategic disagreement. If the defendant requests a new court-appointed lawyer, she should be prepared to give the judge specific reasons for the request. This does not guarantee that the request will be granted, as there is no right to choose a specific court-appointed attorney. However, the request will be more likely to be granted if the defendant can provide specific reasons why they need a new attorney.

DC NLG Representation

While the DC NLG can serve as a source of legal information and support to defendants and their attorneys, we do not usually provide direct representation to persons who have been arrested during a demonstration. DC has a unique criminal defense bar that is comprised of the DC Public Defender Service and nearly 200 court-appointed (CJA) attorneys who handle almost all of the criminal cases in the DC. Hence, there are relatively few private criminal defense attorneys in DC, and only a fraction of those attorneys are affiliated with the DC NLG. While we will usually be unable to provide direct representation, we can provide other services such as courtroom support and legal assistance to your defense counsel.

Please consult the NLG Referral Directory for a list of NLG-affiliated attorneys.

Please consult the CJA Panel Telephone List for the list of CJA attorneys.

Please consult the Public Defender Service website for more information about their services.

*Please note that the DC NLG is prohibited from speaking with a defendant about their case unless we have explicit permission from their attorney.

Communicating with Others After an Arrest

DO NOT talk to anyone about your case or write anything down without first discussing the potential ramifications with your attorney. The only confidential conversations a defendant can have about what happened before, during, and after their arrest, are with their attorney. There is no Facebook friend privilege. There is no parent-child privilege. Even spousal privilege is not absolute. This means if a defendant talks about the charges pending against them and any conduct they or others may have engaged in with anyone other than their attorney, that person could be subpoenaed to testify against them. A defendant should not talk to anyone or write anything down related to the case without first speaking to an attorney.

Also remember that the DC Superior Court (or any court) is not a secure place. There are police officers, U.S. Marshals, police investigators, and prosecutors throughout building. Please remember that when you are in the courthouse and be very careful about what you say. The same goes for jails, prisons, and police vehicles.

Overview of the Court Process

Arraignment

Arraignment is the first court hearing in the case. Arraignments are conducted in courtroom C-10 (unless the case is being heard in federal court). Citation arraignments are held at 10 a.m. on Tuesdays, Wednesdays, and Thursdays. Arraignments for persons who were detained overnight are held at 1 p.m. on every day except Sundays. A small subset of protest charges fall under the traffic code. Those cases are arraigned in the traffic courts (courtrooms 115, 116, 120) at 9:30 a.m. on Tuesdays, Wednesdays, and Thursdays.

The following steps usually take place at the arraignment: the prosecutor decides which (if any) charges to file; your lawyer enters their appearance on the record; you inform the court how you plead to the charge(s) filed against you; and initial discovery is exchanged between the prosecutor and the defense attorney.

Unless a defendant hires a private defense attorney prior to the arraignment, the court will appoint a CJA attorney to represent the defendant during the arraignment. After the arraignment, the defendant is required to hire their own attorney if the court deems they are able to pay for their own defense.

The arraignment is also when the court determines a defendant’s pretrial release conditions. The federal and local criminal courts ended their use of cash bail several decades ago and instead rely on the Pretrial Services Agency to help determine whether their is any reason to believe the defendant would be a danger to the community or a flight risk if released. The vast majority of defendants in DC are released before trial, but are usually required to comply with one ore more pretrial release conditions, such as avoiding further violations of the law, weekly check-ins, drug and alcohol testing and treatment, and staying away from a person or place. After the arraignment, the case is assigned to the criminal judge who will oversee the case until it is resolved.

Status hearings

After arraignment, there will be one or more status hearings that will track the progress of your case as the attorneys conduct their investigation and decide how they want to proceed with the case. At the first status hearing after the arraignment, which is called the initial status hearing, you will usually be asked how you would like to resolve the case: a guilty plea; a guilty plea pursuant to a plea bargain (if offered by the prosecutor);  a pretrial diversion agreement (if offered by the prosecutor); or a trial. If the case is not resolved at the initial status hearing, a status hearing will be held every few weeks to monitor the case until it is resolved or set for trial.

Defendants must attend all status hearings in person unless the court has given prior permission on the record for the defendant’s presence to be waived. Willfully failing to appear at a court date you have notice of could be treated as a violation of a release conditions. Violating your release can result in sanctions, up to and including revocation of release and pretrial detention at the DC Jail. Failing to appear at a court hearing can also be charged as a separate offense. If you are unable to appear for your hearing for some reason, notify your attorney immediately so they can attempt to reschedule the hearing or perhaps waive your presence at the hearing and proceed without you.

Plea bargains

The government often offers the defendant a ‘plea bargain‘. A plea bargain is an agreement where the defendant agrees to plead guilty to the offense(s) listed in the plea bargain and comply with any other conditions in exchange for concessions from the prosecutor, such as asking the judge not to impose jail time or dismissing some of the charges. The judge is not required to accept the plea bargain, but in most cases the judge will respect the agreement as long as they find the defendant has entered into the agreement knowingly and voluntarily. Your defense attorney is required to communicate all plea bargains to you and discuss the benefits and consequences of accepting the plea bargain. The final decision about whether to accept a plea bargain is made by the defendant.

Pretrial Diversion

In the DC penal system, pretrial diversion refers to a procedure in which the prosecutor offers to defendants it deems eligible the possibility of the charges being dismissed if the agreement is completed. Eligibility for pretrial diversion usually requires passing one or more drug tests (cannabis excluded).

Stet Agreement (trespass cases only): An agreement in which you agree to stay away from the site of the trespass for a specified period of time. If you complete the agreement, the charge is dismissed. If you fail to complete the agreement, you must either plead guilty or take the case to trial.

Deferred Prosecution Agreement (DPA): An agreement in which you agree to complete 32 hours of community service within four months and not get rearrested. Other special conditions may apply. If you complete the agreement, the charge is dismissed. If you fail to complete the agreement, you must either plead guilty or go to trial.

Deferred Sentencing Agreement (DSA): An agreement in which you plead guilty and agree to complete 48 hours of community service within six months and not get rearrested. Other special conditions may apply. If you complete the agreement, you can withdraw your guilty plea and the charge is dismissed. If you fail to complete the agreement, your guilty plea is you are convicted and sentenced.

Probation

Probation is a period of time during which a person who is convicted of a criminal offense must follow certain conditions imposed by a judge or risk being sent to jail. The prosecutor often will offer to request the judge impose a period of probation in exchange for the defendant pleading guilty. The Court Services and Offender Supervision Agency monitors individuals who are placed on probation. A person can only be placed on probation if they consent beforehand.

The primary benefit of probation is that it usually allows a person to avoid serving jail time. However, the primary disadvantage is that it keeps the person within the control of the court often for six months or more. Any violation of the conditions of probation, no matter how trivial, could lead to further court hearings or the revocation of probation and a jail sentence.

Trial

You always have the right to take your case to trial. You do not have to accept a pretrial diversion agreement or plead guilty. In most cases, you will only be eligible for a bench trial in which a single judge will decide whether the prosecutor has proved guilt beyond a reasonable doubt. Your attorney can help you decide whether your case should be taken to trial or resolved through some other means.

Legal Solidarity

Legal Solidarity is a decades-old strategy whereby arrested peoples unite together in order to lessen the impact of the court system on the group as a whole. Typically, people collaborate with each other by making decisions as a group–when people unite together they are far more powerful than they are as individuals, and this principle can also be true in court. The goal of Legal Solidarity is to make people safer. For example, during incarceration, police often target specific groups, such as transgender and gender-nonconforming people. Legal Solidarity may help to combat or deflect such selective policing practices. A similar practice occurs in court with the prosecutor targeting certain individuals such as known organizers, people of color, and immigrants for harsher treatment. Defendants should discuss this strategy with their lawyer. The Midnight Special Law Collective Legal Solidarity Manual is an excellent guide for more information and a way to find additional resources.

Further questions?

Please contact us at dcmassdefense@gmail.com.