X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When Dechert offered to let senior associate Karineh Khachatourian take a three-month paid leave from her IP and commercial litigation practice to try misdemeanor criminal cases for the Santa Clara County district attorney’s office, she jumped at the chance. After seven years as a lawyer, she was ready for new challenges and courtroom experiences. She especially relished the DA’s warp-speed trial schedule — she could handle up to seven trials in three months. Energized by the fast-paced criminal trial world — and sobered by the glares of orange-jump-suited prisoners as she argued her first cases — Khachatourian decided to share her experiences with co-workers by sending them e-mail accounts. Her early dispatches, some of which are reprinted below, offer a glimpse at how a civil litigation attorney gained a new vantage point on the criminal justice system by participating in the DA’s Volunteer Attorney Program. The missives are in typical e-mail lingo — written on the fly, sometimes in a free-association style, and underscoring the excitement, anxiety and satisfaction of facing challenges not often experienced in the more sedate world of civil litigation. Tuesday I officially became a deputy DA today, sworn in by District Attorney George Kennedy. He put on his jacket and had me stand in front of the American flag. The importance of what I was about to do and the impact I was going to have on other people’s lives did not really register with me until I was sworn in. Mr. Kennedy clearly takes his job seriously and the feeling was contagious. I had to recite a particularly long oath and, thankfully, I did not miss a word. I suspect that if I had, it would not have made a good first impression. I was immediately assigned several cases, one of which goes to trial Friday. It is a bench trial on a Penal Code 415 charge: disorderly in public. You have to learn the numbers of all the charges because that is how the DAs, defense attorneys and police officers talk. Otherwise, you don’t appear credible. I got to work right away. In one of my cases, I had to disclose to the public defender that the victim had felony and moral turpitude convictions. I also had to disclose the interview notes our investigator had made on the victim. You have to be very open with the other side and that is something lawyers often try not to do in civil proceedings. Not only that, but it feels like the defense doesn’t have to share anything with us. This is going to take some getting used to. Saturday I am up at 6 a.m. on a Saturday morning (what is wrong with this picture?), but I am just thrilled that I won my first bench trial yesterday. Everything that happened keeps racing through my mind. It was a 415 infraction (fighting, noise and offensive words in public). I had two witnesses in my case in chief, both police officers. The defendant also testified. Although I relied a lot on my general legal skills and intuition, I was unfamiliar with criminal procedure. Apparently in criminal law, you raise the motions in limine right in the beginning of trial. They are rarely in writing, and notice is rarely given. You also let the court know at the time of trial who your witnesses are. You do not have to show the other side or the court the exhibits until you want to introduce them with the witness sitting in the chair. Talk about flying by the seat of your pants! This is all very different from civil litigation, where everything is in writing and sometimes you have weeks or even months to prepare. It is taking me some time to get used to it because if I practiced civil law this way, I think I would be in a lot of trouble. But I like the trial-by-fire approach. It really keeps you sharp and on your toes. I admit I made my share of rookie mistakes. I marked photos as exhibits, but apparently if you don’t say the magic words, “The people move this exhibit into evidence,” it is not getting in. That is a mistake I will never make again. There were also times where I would ask a witness a question and then realize that I did not set up the foundation. For example, I asked one officer, “When you arrived at the scene on the evening of April 4,” but I didn’t first ask when he got there. No one objected, but I felt like saying, “Do over.” Although a bit embarrassed, I am glad I made these mistakes because I really learned a lot from them. The highlight for me was when I caught the defendant in a lie. In the police report and the testimony, it was said that the defendant had yelled at the cops, “Don’t you know who my mother is? She is a city council member.” So I asked him if he had said that to the cops. He said, “Yes.” Then I said, “Well, is your mother a city council person?” and he said, “No.” I thought, here it is: my Perry Mason moment. I have won this case right here, right now. So of course I said, “So you lied to the officer that night?” And after a few rounds, he finally admitted that he did not tell the truth. Although I could have asked more questions, I was like, “No further questions, your Honor.” It was exhilarating. So I got a guilty conviction. When I heard the judge say, “The court finds the defendant guilty,” it was a strange feeling. When I win in civil, I am obviously delighted. But when I heard the criminal sentence, I was like, “Damn, this kid has got to pay money, and it is now on his record ’cause I did my job.” Nonetheless, I felt proud that I won. When I walked out of the courthouse, the defendant was walking in front of me and I couldn’t help but think, he better not turn around and get into it with me. As a lawyer, I have never worried about my personal safety before. But given how I am the most unpopular person in the courtroom these days, it certainly is something I think about. Monday I was thinking over the weekend about the police. The officers really look to the district attorney’s office to back them up. The two arresting officers who were involved in the trial on Friday were so happy that we won that they thanked me. I must admit that I am developing a newfound respect for law enforcement. They really are on the front lines, and usually, from my perspective here, they really are just trying to “protect and serve.” They are so nice to the deputy district attorneys, including me, and I feel part of a team. Thankfully, I really have not had much interaction with law enforcement in my capacity as a lawyer or a citizen. As a civil attorney, the entire criminal justice system seemed millions of miles away from the type of law I practice. Most of my “confrontations” have been in plush conference rooms with soft drinks and bottled water. But now I am in a world where defendants are brought up from jail and they are sitting in handcuffs two feet away from me. So, I must admit that I am comforted by the fact that I am on the same side as those in law enforcement who are armed and there to ensure my safety. Thursday I spent the day watching prosecutors and defense attorneys bargain over people’s lives right in front of them and sometimes with them. It was quite sobering. Obviously, in civil cases, I have done a lot of settlement negotiations, but this was different. It seemed so personal, and it had an immediate effect on people’s lives. It scared me a bit because some of the defendants’ stories seemed plausible (like the guy who said he forgot to pay for something at Home Depot ($29 in razors). Most of these people were repeat offenders, some young, some old, all different ethnic backgrounds. The DA’s office has the immense power to determine what happens to these people. From everything I am observing, I don’t believe they abuse this authority. I went with another deputy DA to what is called a PT (pretrial calendar). Very different from any pretrial calendar I have ever been to. First, you got people in shackles and cuffs and orange jumpsuits. Sometimes they stare at you. At first, you want to help them because they look harmless. But then you see their rap sheet. One guy had 24 priors for public drunkenness. Another had several priors for indecent exposure. It was pretty overwhelming, and I had to do everything I could not to show my surprise. The prosecutor of the day sits at counsel’s table, and there is a pack of defense attorneys that surround you and try to cut a deal. Most of the time, you approach the bench (boy, was I getting my exercise) and the judge pretty much arbitrates what a fair offer is. If he thinks the DA is being harsh, he will tell you so. It all goes so fast, and there is no way you are going to know every file, and in my case, I could barely keep track of the charges (they keep using these darn numbers). The people in court seem so desperate, and the judge and support staff actually seem to care about them and look out for them to make sure they get a chance. This is the biggest difference I see from civil. In my view, the court is very paternalistic and protective. Anyway, the court is always thinking of ways to help them (like if you drop this charge, they will be eligible for Prop 36), stuff like that. I also must admit that, being a private attorney, I have always had a bias against public attorneys like prosecutors and public defenders. I figured they went “public” because they could not go “private.” But my experience here has changed my way of thinking. All the deputy district attorneys are skilled and competent lawyers. And the public defenders are also impressive, especially since they have the most difficult job of all sometimes — defending the indefensible. I have been very impressed with the caliber of lawyering. These are trial lawyers who are in a league of their own. Tuesday I arrived at 8:45 a.m. at the courtroom and saw a sign on the door that said “People v. xxx” and I couldn’t help but feel pride that I was involved in putting this serial DUI guy away. It was a very patriotic moment. I am ready to go, have my witnesses lined up, jury instructions done, opening statement memorized, and, as luck would have it, the defendant decided to plea[d]. He took the judge’s offer — 10 days jail time — which turned into 43 days of jail time because the defendant could not pay court costs and fees. And, by the way, to the state of California, our lives are worth $50 a day when we are incarcerated. I don’t know about you, but I am definitely worth much more than $50 a day. After it was all over the judge asked me if I was disappointed, and of course I said, “yes.” The judge, the bailiff, the court reporter and the clerk all said they wanted to see this case go to trial (they were the crowd for my first trial). In the middle of all this, one of the inmates got rowdy, and the bailiff had to get him under control. I must admit I wanted to hide under the table (but I didn’t). I had visions of a bad movie where the inmate gets the gun and starts shooting. Looks like I may need to lower my caffeine intake. Thursday Well, I just finished my first three-day jury trial as a deputy district attorney. As luck would have it, the defense attorney was a very experienced lawyer who is a legal commentator on CNN. The jury deliberated for two hours today, and they are returning tomorrow. This was a 148 case — resisting, obstructing or delaying a peace officer. The defendants were a good-looking twentysomething couple who did not have criminal records. They had gone out for a night on the town during the holiday season. [ Editor's note: According to police, the male defendant got thrown out of the Tres Gringos bar in downtown San Jose just before closing, and officers saw him fighting with bouncers outside. When they arrived to break up the fight, police said, the man began struggling with them, and his girlfriend jumped on one cop's back.] Needless to say, this case probably did not have a lot of jury appeal. Nonetheless, as they like to say in the office, some cases just have to be tried. This was not an easy case for a first criminal jury trial. You have co-defendants with one not represented by a lawyer. So the whole thing was weird from a procedural posture. During sidebar and discussions in chambers, the male defendant had to be present because he was pro per. It was definitely awkward. In the end, though, I benefited because Mr. CNN was teaching the defendant how to conduct himself, and I watched and learned as well. The fact that Mr. CNN is a good lawyer made this a better learning experience. I put up four witnesses, all police officers. Both defendants testified, as well as one of their friends. This was definitely a case of “cops” versus “kids.” There certainly were no Perry Mason moments like my first trial. It was weird not to be able to talk to the jurors, and you have to pretend you don’t see them outside the courtroom. I felt I was always trying to avoid someone. You learn quickly that the jurors are watching your every move inside and outside the courtroom — not to mention the defendants (who clearly hate me) and their parents (now they really hate me). There were no friendly faces around me for the last few days. Every time I went outside there were defendants who knew I was a DA, and if looks could kill. . . . So now the jury is deliberating. The idea that I may have convinced 12 people to render a guilty verdict is unbelievably scary, but the thought that I may lose is equally frightening. Funny of the day: In my discussions at work, I used the phrase, “He ratted him out.” Everyone laughed, and my supervisor said, “We like to call it assisting law enforcement.” My bad. Friday The jury deliberated for nine hours. Rather than keep you in suspense, they ultimately rendered not-guilty verdicts. I was able to speak with all the jurors after the case was over and got a lot of positive feedback. The court reporter thought my closing argument was “fantastic.” Her words, not mine. Even Mr. CNN told me I did a nice job. So what happened? The jurors told me that first they had guilty verdicts, then split verdicts, then not- guilty verdicts, and they kept flip-flopping. I knew I was going to lose when the judge let in a self-defense jury instruction. I argued vehemently against it, but the judge let it in. The jurors told me in the end that they felt the defendants were guilty, but they acted in self-defense. The negative side of this is, I feel like crap. Despite all the praise I received from the jury, I am disappointed. I knew this was a tough case, and I also knew that the fact that the jury deliberated for such a long time meant I did a good job — we definitely gave them something to think about. To be honest, though, if I had gotten a conviction, I would have felt bad because I would have been responsible for putting these two kids in jail so early in their lives. So either way, I wasn’t going to be happy. So, in all, it was a good day for me but a bad day for the state of California. I am so utterly disappointed that I am going to Red Robin to have bottomless French fries and an Oreo cookie shake and apple pie a la mode (my favorite). Some people drink, I eat. Believe it or not, I have not eaten a full meal since Monday. This stint at the DA’s office has been great for my diet. Monday You will all be happy to know I survived my “carb binge,” and I have picked myself up and dusted myself off for the next trial. I am attending what is called a “shakedown.” That is where you are assigned to cover a department for the week, and anywhere from three to a dozen cases are set for trial, and through the process you see what actually “sticks.” Some people plea[d], some defense lawyers or the DA request a continuance, sometimes on rare occasions cases are dismissed, and if you are lucky, one “sticks” and you are going to trial. I will keep you posted . . . Editor’s note: Khachatourian won five of the six trials she handled during her stint at the DA’s office.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.