Critical defense witnesses should be granted immunity if expected testimony meets definition of exculpatory and material as defined in Brady, and limits on government’s ability to impeach such a witness who is forced to invoke the Fifth Amendment.

Kevin Young v. United States (decided July 28, 2016).

Players: Chief Judge Washington, Associate Judge Beckwith, and Senior Judge Reid. Opinion by Judge Beckwith.  Cecily Baskir for Mr. Young.  Trial Judge: Michael Ryan. Cecily Baskir for Mr. Young. 

Facts: In October, 2012, two Metro police officers responded to a disorderly conduct call and, upon arrival, observed two men arguing. They were later identified as Mr. Young and his nephew Maurice. The officers observed a white SUV nearby with the engine running. One police officer looked inside the car and saw a belt with an empty gun holster and handcuffs in the backseat as well as two vials in the driver-side door handle. The officer then asked Mr. Young if he was a police officer, and Mr. Young said he was not but had found the items. He also said he had “just drove up.”

Mr. Young walked back to the car and the officers saw him place his hands over the two vials. At that time, the officers noticed a smell they believed was PCP. When asked what he was covering up, Mr. Young said “oils.” He was then placed under arrest. At trial, it was stipulated the two vials contained 5.6 grams of liquid PCP. 

At a pre-trial suppression hearing, both Mr. Young and Maurice testified that Mr. Young had driven the car and his nephew Maurice was the only passenger. But at trial, counsel for Mr. Young raised a Carter issue by telling the court Maurice should be granted immunity because he would testify he was the last person to drive the car and the drugs belonged to him, making him a “critical defense witness.” Counsel for Maurice proffered to the court that Maurice would testify he had driven the car but that he had no knowledge of the drugs. Maurice had also testified at a suppression hearing that he was intoxicated at the time. The court concluded Maurice had a Fifth Amendment privilege and, because his testimony would be exculpatory, asked the government to decide whether to grant Maurice immunity. Ultimately the government told the court it would for DUI but not for the charges related to the drugs and underage drinking. The government’s reason was that his testimony he was driving would be “a clear instance of perjury” that the government could not “support.”

The court then reconsidered its ruling and concluded Carter was not implicated because Maurice’s testimony would not have been “clearly” or “wholly” exculpatory. The court said Carter would only be implicated, which would require the government to grant Maurice immunity or reach some other resolution to preserve Mr. Young’s right to a fair trial, if Maurice would have testified “the drugs were mine” or “I can tell you that the drugs weren’t mine.”

Maurice testified at trial without immunity and asserted his Fifth Amendment rights when asked if he was the driver or the passenger of the car and if he put the drugs inside the car. However, he then said he did not place the drugs in the car. On cross-examination, the government introduced Maurice’s suppression hearing testimony where he said Mr. Young had driven the car. 

The jury convicted Mr. Young of both PWID and possession of liquid PCP.

Issue 1:  Did the trial court err in determining that Carter was not implicated because Maurice’s testimony would not be “clearly exculpatory”? 

Holding: Yes. The Court acknowledged that its cases have used both the term “exculpatory” and “clearly exculpatory” when laying out the test for trial courts to use under Carter. The test states that defense witness immunity is required upon a showing that: 1) the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment; and 2) the witness’s testimony will be material, exculpatory and not cumulative and is not obtainable from any other source. Carter v. United States, 684 A.2d 331, 340 (D.C. 1996). Because Carter emphasized that its rule “emanates from settled law that the government has a constitutional duty to volunteer exculpatory evidence to a criminal defendant,” citing cases that involve application of the Brady doctrine, the Court concluded that “exculpatory” in the Carter standard means the same thing as in the Brady context. Exculpatory evidence under Brady is evidence that “tends substantively to negate guilt.” As a result, the proffered testimony here was favorable to Mr. Young, and thus exculpatory because “it established that another person was the most recent occupant of the driver’s seat where the drugs were found and thus increased the likelihood that the drugs did not belong to Mr. Young.” Nothing more was required.

Next, the Court decided whether the government was “reasonable” in refusing to grant Maurice immunity because it believed he intended to clearly perjure himself at Mr. Young’s trial. In Carter, the Court stated that “a threat of a blatant perjury . . . may sometimes be so apparent as to be demonstrable to the trial judge [that] the government could not reasonably be expected to cloak in advance such testimony with immunity.” But in this case, the Court did not agree with the government that Maurice’s proffered trial testimony would constitute perjury. Even though Maurice’s proffered trial testimony would have been contrary to his testimony at the suppression hearing, he could have offered a “plausible explanation for the discrepancy, and it is not at all obvious that Maurice’s proposed trial testimony was the untrue account.” 

Further, consistent with Carter’s purpose of balancing the defendant’s Sixth Amendment right and the witness’s Fifth Amendment right, the question whether denial of immunity is reasonable relies in part on “whether there will be a distortion of the fact-finding process” should the government deny immunity.” Here, because the government introduced Maurice’s suppression hearing testimony after he had invoked his Fifth Amendment in response to questions asking if he was driving the car, there may have been such a distortion. The introduction of his suppression hearing testimony “distorted” the case because it allowed the jury to hear one version, his suppression hearing testimony, while never hearing the other version. The Court stated that while “[t]he Carter process was designed to alleviate this tension between Maurice’s and Mr. Young’s constitutional rights,” the government’s refusal to grant Maurice immunity and then presenting the jury with his previous statements after he had invoked his privilege actually “exacerbated this tension.” 

However, the Court affirmed Mr. Young’s conviction, finding Maurice’s testimony would not have been “material.” Carter, applying the Brady doctrine, requires that the proffered testimony be both exculpatory and material. Evidence is material if “there is a reasonable probability that  . . . the result of the trial would have been different” had the evidence been presented. Even had Maurice testified he was the driver of the car, the government presented “considerable evidence” of Mr. Young’s ability and intent to exercise dominion and control over the drugs: 1) he was riding in a car that smelled of PCP; 2) he attempted to cover up the PCP when the door was opened in front of the police officers; and 3) he asserted, incorrectly, that the vials contained “oils.” 

Issue 2: Was the evidence sufficient to convict Mr. Young of PWID?

Holding 2: Yes. The Court concluded there was sufficient evidence to support the element of PWID requiring proof beyond a reasonable doubt of Mr. Young’s intent to distribute. Though he possessed a very small amount of PCP, it was contained in two half-ounce glass vials that were each a quarter full. The government presented expert testimony that half-ounce vials are “usually” purchased by street dealers who “take the vials and stand ‘in an open air market,’ where they can . . . distribut[e] the liquid to customers who dip cigarettes in the PCP solution and smoke them.” The expert opined that the vials in this case were “identical” to the half-ounce vials which a street dealer purchases. As a result, even though the relatively small amount could have been consistent with personal use, the evidence was sufficient to prove the drugs were for sale “when their packaging is suited for distribution.” 

Of Note:

• The opinion has several important holdings for future cases involving Carter and requests for the government to grant immunity to a “critical defense witness.”

• First, the opinion makes clear that the government cannot refuse to grant a “critical defense witness” immunity simply because they expect the witness to contradict previous testimony. The Court said it must be “obvious that [the witness’s] proposed trial testimony was the untrue account.”

• Second, Carter does not require a heightened standard for showing the expected testimony would be “exculpatory.” It does not have to be testimony, as the trial court here believed, that would “wholly” exonerate the defendant. Instead, the Court states that the standard in the Carter context is the same as in Brady: the proffered testimony need only tend substantively to negate guilt.

• And third, in the event the government refuses to grant immunity, it cannot be allowed to then introduce prior statements to impeach the witness if it is only to impeach the witness invoking his privilege against self incrimination. Such a scenario will result in a “distortion of the fact-finding process,” which is what Carter was designed to prevent. If such a situation is to occur, the argument to the trial court should be that the government must either 1) grant the witness immunity or 2) not present the jury with the prior statements for the purpose to impeach the witness who has invoked the privilege. BM

Read full opinion here.

I'm Sure the Jury Didn't Hear That!

Christopher T. Holmes v. United States (decided July 21, 2016)

Players: Associate Judges Thompson and McLeese, and Senior Judge King. Opinion by Judge King; Judge McLeese dissenting in part. Peters H. Meyers for Mr. Holmes.  Trial Judge: Rhonda Reid Winston.

Facts: After David Tucker accused his friend, Mr. Holmes, of being up to no good and looking for someone to rob, the two men got into a heated verbal altercation. The altercation, which began in a barber shop, got physical and spilled out into the street, where, eventually, Mr. Holmes shot and killed Mr. Tucker. The incident occurred during the day, and was witnessed by two men, Akeem Young and Carlton Clemons, who identified Mr. Holmes as the shooter.

At trial, Nicholas Proctor was permitted to testify that he had been the victim of a robbery and that prior to the shooting he had told Mr. Tucker that Mr. Holmes might have been the perpetrator. Additionally, both Mr. Young and Mr. Clemons were permitted to explain their reluctance to testify and additions to their accounts with statements that they were scared of being involved in a homicide case. Finally, during the trial, a potential defense witness, who was never called, started “screaming” right outside the courtroom, “There are people in this room. My life is in danger.” The trial court denied the defense’s request for a mistrial as a result of this outburst, after finding that it was not clear if the jury had heard the outburst or realized it was connected to the trial. Further, the court gave the jury no curative instruction related to the outburst.

Issue 1: Did the trial court abuse its discretion in admitting Mr. Proctor’s testimony about a prior robbery as more probative than prejudicial?

Holding: No. The evidence was admitted to explain Mr. Tucker’s argument with Mr. Holmes (accusing his friend of looking to rob someone), see Johnson v. United States, 683 A.2d 1087, 1098 (D.C. 1996) (en banc), and not to show criminal propensity. Moreover, the trial court instructed that the evidence be carefully limited to no more than that Mr. Proctor had made an accusation to Mr. Tucker, excluding any testimony about the robbery or what led Mr. Proctor to believe Mr. Holmes was responsible. Under these circumstances, the testimony was not more prejudicial than probative.

Issue 2: Did the trial court abuse its discretion in admitting Mr. Young and Mr. Clemons fear testimony as more prejudicial than probative?

Holding: No. The DCCA finds that Clemons’s testimony was properly admitted because he testified very generically about being scared of testifying in a homicide case. Such “generic” testimony did not reasonably give rise to a concern that Clemons was specifically scarred of Mr. Holmes. Young’s testimony was a closer call for the DCCA because his testimony included fear based on his claim to have been twice told by Mr. Holmes himself not to testify. Ultimately, the DCCA relies on Young’s testimony on cross examination that he did not perceive his two encounters with Mr. Holmes as “threats” to find that Young’s fear testimony would not unfairly lead the jury to believe Mr. Holmes had engaged in witness intimidation.

Issue 3: Did the trial court abuse its discretion in denying Mr. Holmes’s motion for a mistrial, or for failing to conduct further inquiry into whether or not the jury might have been influenced by the outburst outside the courtroom?

Holding: No. Although both the majority and the dissent agree that where the jury’s impartiality has been “plausibly called into question, it is the responsibility of the trial judge to hold a hearing to determine whether the allegation of bias had merit,” Tann v. United States, 127 A.3d 400, 470 (D.C. 2015), and that the government has the burden “to demonstrate that the [jury’s] contact with extraneous information was harmless or non-prejudicial,” id., the majority concludes that the trial court’s colloquy with counsel was sufficient for the court to determine that no further questioning of the jury or instruction was required, and to deny the request for a mistrial. The majority relies on the fact that the trial court found that it was not clear that members of the jury had heard the outburst, or that they would have any reason to connect the outburst with the trial proceedings.

Dissent: Judge McLeese parts ways with the majority as to Issue 3. He would find that the trial court abused its discretion for failing to make any inquiry of the members of the jury as to whether and to what extent any of them might have been influenced by the outburst. Judge McLeese would hold that such an inquiry was required before the court could properly decide what, if any, corrective action was required. This dissent is important because it carefully applies the ruling of Tann, and can therefore be used as a template in future arguments about this heavily fact specific question.  CP

Read full opinion here.

Firearms Examiner May Not Testify That Bullet Was Fired From a Particular Gun With Absolute Certainty, Plus Some Other Errors, But No Harm

Eric Gardner v. United States (decided June 23, 2016)

Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Reid. Opinion by Judge Reid. Benjamin Brooks for Mr. Gardner. Trial judge: Robert I. Richter

Facts: A taxi driver was shot and killed.  Police canvassing the area went to a nearby motel, and received a report that a man, who turned out to be Mr. Gardner, had just recently returned to room 114.  Officers standing outside the room heard a male voice saying he "need[ed] to get this stuff off of me, I'm very amped up right now," a shower running, and what one officer claimed was the distinctive sound of a gun being racked. Another officer outside the motel saw Mr. Gardner climb out of a window.  When the officer approached, Mr. Gardner dropped his jacket and a black gun, and he ran. The jacket had a blood stain, and DNA analysis could not exclude the taxi driver as one of two different contributors of the DNA.   Police later found, in an alley where a witness had seen a man running from the taxi driver's cab, a silver and black gun.  A witness claimed Mr. Gardner had shown her a silver and black gun shortly before the shooting.  A firearms examiner testified that the silver and black gun found in the alley was the gun that fired the fatal shot. A jailhouse informant testified that Mr. Gardner had admitted that he tried to rob the taxi driver and shot him when he refused to give up his money.  

Mr. Gardner testified in his defense that he had been a passenger in the taxi and was about to pay his fare when a third person with a gun attempted a robbery of the taxi.  Mr. Gardner struggled with the robber, and the driver accelerated the car, and then a shot rang out.  The robber ran off, and the taxi continued driving some distance before it crashed.  Mr. Gardner then ran to the motel, admitting that he had gone through the alley in which the silver and black gun was found.

Issue 1:  May a ballistics expert testify that a bullet was fired from a specific gun with 100% certainty?

Holding 1: No.  The Court adopted Judge Easterly's position in her concurring opinion in Williams v. United States, 130 A.3d 343 (D.C. 2016), which we blogged about here, and held that "a firearms and toolmark expert may not give an unqualified opinion, or testify with absolute or 100% certainty, that based on ballistics pattern comparison matching a fatal shot was fired from one firearm, to the exclusion of all other firearms."  The Court did not preclude firearms examiners from offering an opinion that a bullet or casing came from a gun, but they cannot opine that it did with absolute certainty.  The Court also expressed "doubts as to whether trial judges in this jurisdiction should permit toolmark experts to state their opinions 'with a reasonable degree of certainty.'"

However, the Court held the error was harmless, calling the remaining evidence "strong and compelling."

Issue 2:  Did the court err in allowing a government DNA expert to testify that DNA from the silver gun matched Mr. Gardner's DNA at only two of the thirteen loci that are typically analyzed?

Holding 2:  No.  Given the low bar for evidence to be relevant, the match at only two loci was relevant even if it was not uncommon for different people to match at those locations.  The evidence was also not more prejudicial than probative, given the analyst's testimony that there was insufficient DNA to obtain a profile, and it was common for different people to match at a single locus.

Issue 3:  Did the court err in preventing Mr. Gardner from testifying about his knowledge that the jailhouse informant had a reputation as a "snitch," allowing the defense to argue that Mr. Gardner would not have confessed to a known snitch?

Holding 3:  Assuming this was error, it was harmless.  The informant had admitted during cross-examination that he was a known snitch, and his credibility was otherwise substantially impeached.  Mr. Gardner's testimony that he know of the informant's reputation "would have been, at most, a small addition to the impeachment of [the witness], and not a significant contribution to enhancing Mr. Gardner’s own credibility."

Issue 4:  Did the court err in refusing to give a "plea agreement" instruction, cautioning the jury that testimony of a witness who has entered into a plea agreement should be considered with caution?

Holding 4:  No, because the informant did not have a plea agreement with the government.

Issue 5:  Did the court err in restricting the defense's cross-examination of a police officer about two investigations targeting the officer, one for harassment and the other for excessive force?

Holding 5:  Assuming this was error, it was harmless.  The officer was effectively cross-examined, and his testimony was a small piece of the government's evidence.

Issue 6:  Were Mr. Gardner's post-arrest statements to police voluntary?

Holding 6:  Yes.  Although he had been held for some time, he was sleeping for the first ten hours.  Although he was not immediately given food when he asked for it, he was not told that food be withheld unless he gave a statement.  Mr. Gardner initiated his conversation with police, and he signed a waiver form.  At one point during his statement when Mr. Gardner was shivering, officers "turned the vent off."  Mr. Gardner's will was not overborne in such a way as to render his statements the product of coercion.

Issue 7:  Did trial counsel provide ineffective assistance by failing to cross-examine the firearms examiner using a specific report; failing to object to post-arrest police statements to Mr. Gardner about multiple witnesses to the shooting, and failing proffer a basis for the admissibility of Mr. Gardner's testimony about his knowledge of the jailhouse informant's reputation as a snitch?

Holding 8:  Assuming trial counsel's performance was deficient, there was no prejudice.

Of Note:

• Although the opinion's holding bars only testimony that an expert is absolutely certain a bullet or casing came from a particular gun,the opinion leaves the door open to further limitations on the testimony of firearms examiners.  Defense attorneys should continue to fight for limits on this testimony, using the reports and articles cited in the opinion as ammunition.

• The court's harm analysis leaves much to be desired.  The defense presented a plausible account of the shooting that the jury might have credited, particularly given the government's apparent inability to explain why Mr. Gardner's jacket had blood from two different (and unknown) individuals, and the failure of police to preserve a bloodstain on the right rear passenger window -- evidence which could have corroborated Mr. Gardner's account of a third person's presence.  The fact that the apparent murder weapon was found on Mr. Gardner's flight path and the purported confession he made to the jailhouse informant were thus critical pieces of evidence.  Given that the errors went to those aspects of the government's evidence, the finding of harmlessness from the cumulative prejudice is dubious.  DG

Read full opinion here.  

Questionable Conduct: Detective’s Interrogation Tactics Create Impermissible Risk That Waiver of the Right to Counsel Was Not Intentional

David T. Robinson v. United States (decided July 14, 2016).

Players: Associate Judges Fisher and Blackburne-Rigsby and Senior Judge Pryor.  Opinion by Judge Fisher.  PDS for Mr. Robinson. Trial Judge: Stuart G. Nash. 

Facts 1:  On May 11, 2012, following David Robinson’s arrest for violating probation, Detective Anthony Patterson went to Mr. Robinson’s interrogation room and told Mr. Robinson that he believed he was involved in the unrelated murder of Howard Sampler.  Det. Patterson said that it might help if Mr. Robinson were to talk but that he needed to be advised of his rights. When Mr. Robinson said that he would like to talk, Det. Patterson brought him to a different interrogation room.   

After a brief exchange during which Robinson claimed to have acted in self-defense, Det. Patterson read Mr. Robinson his Miranda rights from a PD-47 “advice of rights” form, adding “we don’t provide you a lawyer here.  But if . . . we ask you something and you don’t want to talk about it you can say look, I don’t have anything to say about that.”  Per the first three questions on the PD-47, Det. Patterson had Mr. Robinson acknowledge (1) that he had read or had read to him his rights, (2) that he understood those rights, and (3) that he wished to answer questions.  However, Det. Patterson purposely omitted the fourth question: “Are you willing to answer any questions without having an attorney present?”  At the suppression hearing, he testified, “Once [Mr. Robinson] agreed to talk to me I didn’t see any point in asking him if he wanted to talk to me without a lawyer present.”  In the ensuing interrogation, Mr. Robinson admitted to carrying a .40 caliber pistol and firing it at Howard Sampler multiple times in self-defense.  

Issue 1:  Whether the May statement should have been suppressed for Det. Patterson’s failure to issue proper Miranda warnings or his failure to obtain a valid waiver of Miranda rights?

Holding 1: Yes. Although the warnings were “adequate and effective,” the government failed to prove intentional relinquishment of Mr. Robinson’s known right to have a lawyer present during questioning.  There was no express waiver because Det. Patterson did not ask for one.  Further, “this court is entitled to be skeptical [of implied waiver] in a case like this, where an officer [1] deliberately pursues some express waivers but purposefully fails to complete the PD-47” and [2] “apparently fails to appreciate the distinction” between the desire to answer questions and the willingness to do so without counsel present.  Det. Patterson’s failure to appreciate this distinction creates “obvious concern” that Mr. Robinson’s waiver of counsel was not intentional (which could have easily been resolved by completing the PD-47). 

Facts 2: Following the May interrogation, Mr. Robinson was detained for violating his probation until late November.  Days after Mr. Robinson’s release, Det. Patterson called Mr. Robinson and went to his mother’s house (where Mr. Robinson was babysitting his two-year-old daughter) to speak with him.  Det. Patterson later called the child’s mother to discuss retrieving the child. 

When Det. Patterson learned that Mr. Robinson was no longer babysitting, Det. Patterson and two other officers pushed their way inside Mr. Robinson’s mother’s house to search for Mr. Robinson, without warrant or invitation.  Mr. Robinson’s mother then called and told Mr. Robinson “to go down there and take care of it and don’t come back to my house until it’s done.”  Mr. Robinson reported to the police station, where the police interviewed him in a locked interrogation room.  At no point during this interview was Mr. Robinson read his Miranda rights.

Issue 2: Whether the November statement should have been suppressed for the police’s failure to issue Miranda warnings?

Holding 2: No. Despite Det. Patterson’s persistence in urging Mr. Robinson to come to the station, he was not in custody.  His friend drove him there.  He was not physically restrained, and his movements were not restricted to the degree associated with formal arrest (although police escorted him to use the bathroom and smoke).  Although the door was closed and locked once questioning began, that would have been true for any witness “who came back to one of those interview rooms.”

The environment was not so coercive as to be custodial.  Det. Patterson told Mr. Robinson that he was not under arrest and “if you want to leave here . . . you can leave.”  Mr. Robinson stated he would act accordingly.  Det. Patterson told Mr. Robinson that the interview would probably take an hour and agreed to help him coordinate with the friend who drove him, in case the interview took longer.  

Although Mr. Robinson once asked to leave and terminate the interview, he did not actually try to do so.  Moreover, by then, he had incriminated himself.  These facts compare favorably with Spencer v. United States, 132 A.2d 1163 (D.C. 2016), in which the Court found no custody.

Of note:

• This opinion highlights the government’s burden to prove that any supposed waiver is intentional as well as knowing.  The Court disagreed that anything Det. Patterson did or said left Mr. Robinson “uncomprehending of and inattentive to the Miranda right to counsel” but still found unacceptable risk that he did not intentionally waive that right.  Judges and attorneys should be mindful of the government’s distinct burden in this regard. 

• In a footnote, the Court acknowledged the possibility that the police violated the Fourth Amendment when three officers, including Det. Patterson, forced their way into Mr. Robinson’s mother’s house in November to search for Mr. Robinson and the further possibility that his November confession was the fruit of this illegal search.  The Court deemed this argument waived and disclaimed the significance of this fact for purposes of deciding whether Mr. Robinson was in custody under Miranda.

• The Court also acknowledged the possibility that the November confession was a fruit of the May confession under the “cat-out-of-the-bag” doctrine but deemed this argument waived.  WC

Read full opinion here.

On remand, appellant gets jury trial on charges that typically aren't jury eligible

LeJune C. Smith v. United States (decided July 7, 2016)

Players: Associate Judges Beckwith and McLeese, Senior Judge Pryor.  Opinion by Judge Pryor.  Dissent by Judge McLeese.  Sean R. Day for Mr. Smith.  Trial judge: A. Franklin Burgess, Jr.

Facts: Mr. Smith requested a jury trial on six counts stemming from a hit-and-run incident after which Mr. Smith was found to be intoxicated.  The maximum sentence Mr. Smith faced for the six charges was 2 years and 9 months, and a fine of $5,500.  The trial court denied the request and proceeded with a bench trial, at which Mr. Smith was acquitted on three counts and convicted on three counts.  On appeal, Mr. Smith argued that his statutory right to a jury trial was violated because he faced a cumulative maximum sentence of more than two years or $4000.  See D.C. Code § 16-705(b).  The government conceded that Mr. Smith’s right to a jury trial was violated, but argued that the three convictions should nonetheless be affirmed because cumulatively, they represent a maximum potential sentence of 1 year and 90 days and a fine of $2,500, and therefore would not entitle Mr. Smith to a jury trial under D.C. Code § 16-705(b).

Issue: Is remand for a jury trial a viable remedy when a defendant has been erroneously denied a jury trial, but would not independently be entitled to a jury trial on the counts being remanded?

Holding:  Yes.  Under D.C. Code § 17-306, the DCCA may “affirm, modify, vacate, set aside or reverse any order or judgment . . . lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate order, judgment, or decision, or require such further proceedings to be had, as is just in the circumstances.”  Slip op. at 8-9 (citing D.C. Code § 17-306).  NG

Read full opinion here.