On October 8, 2009, I had the pleasure (?) of watching the oral arguments in the District of Columbia Court of Appeals for the case of United States v. Harold Austin. Those of you who follow this blog (both of you) will recall that this is the case prosecuted by yours truly (along with fellow prosecutor Tonya Sulia (now Goodman)) in January of 2006. Nearly four years later the case was up for appeal before DC's highest court. Not surprisingly the three judges, Judges Glickman, Blackburne-Rigsby and Ruiz, spent the entire time questioning the attorneys on the so-called re-initiation by the defendant, Mr. Austin. In a nutshell, two days before his arrest, we brought Mr. Austin up from the DC Jail to the DC Homicide Section to see if he would speak to us about the murder of Marion Fye. He invoked his rights, however, and therefore we could not speak to him. When he was arrested two days later, however, he asked to see the arrest warrant while in the car being transported, again from the DC Jail (where he was being held on armed robbery charges) to the Homicide Section. Austin was given the warrant and the affidavit by Detective Chris Kauffman. Eventually, having read the affidavit and warrant, Austin asked to talk to the police and made a confession where he admitted shooting Ms. Fye but claimed it was by accident during a struggle over the gun. He then stated that he dumped Ms. Fye's body in a dumpster behind Ben's Chili Bowl. (Yeah, that Ben's Chili Bowl.) The Court seemed troubled by two things: did the police trick or induce Austin to re-initiate a conversation with the police (even though the subjective intent of the police is irrelevant) and second, does the fact that Austin only asked for the warrant (a single piece of paper with virtually no information about the crime) but was given the multi-page affidavit make a difference? The Court explored this question even though it had not been raised by the defendant before the appellate hearing and had certainly not been raised in the trial court below. Moreover, in all liklihood when the defendant requested the "warrant" he really meant the affidavit that outlines the evidence against him not the warrant that simply lists the actual offense for which he is being arrested. There's no telling when the decision will be made but needless to say, the Court's questions left me a little nervous. Even if they find what the police did to be improper, however, they could still find the error to be harmless since the evidence against Mr. Austin was quite overwhelming. I eagerly await the result!

Posted by Thomas A. (Tad) DiBiase, No Body Guy