Threats And Privilege At Issue In En Banc Argument

The District of Columbia Court of Appeals will hear argument en banc of a panel decision on February 29.

The panel had reversed a conviction because the defendant's attorney had testified about threats made by his client.

Attorney John Harvey was appointed by the trial court to represent Brian Moore in a contempt proceeding after Mr. Moore allegedly violated an order prohibiting him from contacting his then-wife. But Mr. Harvey subsequently became a witness against Mr. Moore: Mr. Harvey was called by the United States government in a separate criminal case to testify about two private in-the-hallway-outside-the-courtroom mid-trial conversations during which Mr. Moore made hostile remarks about the District of Columbia Assistant Attorney General (AAG) who had been assigned to prosecute his contempt case. Based on Mr. Harvey’s inculpatory testimony, Mr. Moore was sentenced to an aggregate of eight years in federal prison for threatening a public official and obstructing justice (two counts each).

Senior Judge Thompson had dissented.

From appellant's brief

In the grand jury proceeding, Harvey testified that the bench trial (Honorable Judith Smith, Associate Judge) in 2017-CCC-000057 started February 21, 2018, then was carried over to April 12, 2018. (Apx. 88-89) On April 12, 2018, Moore allegedly became agitated about Guest and with Harvey. According to Harvey, Moore said “I can’t stand this bitch. I hate this bitch. Fuck this bitch.” Harvey defended Guest as a prosecutor just doing her job. Moore said “What, are you trying to have sex with her or something?” Harvey repeated that Guest was just doing her job. Moore said, “She keep fucking with me I’m going to shoot this bitch. I’ll fuck this bitch up.” (Apx. 91) Moore added, “Yeah, Harvey. I will fuck this bitch up. I will shoot her ass.” Harvey testified that Moore said he had “guns and this and that. He started talking this nonsense.” (91) Harvey testified that he told Moore he was taking Moore seriously. Moore said, “You goddamn right I’m serious.” (91)

Harvey testified that he then called Bar Counsel and afterward asked Judge Smith to allow him to withdraw from the case. Judge Smith would not allow Harvey to withdraw unless he revealed Moore’s statements, which Harvey declined to do at that point. (Apx. 92-93) Harvey testified that he called Bar Counsel again about his options, but Moore approached Harvey and told him “Man I was just bullshitting. So, you know, let’s just leave it alone. Let’s just go on for the trial.” (93) Harvey told Moore that if Moore ever did anything like that again, he would believe Moore and disclose it to the court. (93)

The trial was continued

On the late afternoon of Friday, June 29, 2018, the trial court ordered Moore to have an ankle GPS monitor but it was too late to accomplish that day so Moore would have to return to court on Monday, July 2. (Apx. 95) Harvey and Moore spoke in the hallway. Harvey described Moore as “out of control” and testified that Moore said “Harvey, I’m telling you right now, if I lose my job I’m going to bust a cap in that bitch [Guest].” (100) Moore continued, “Fuck that bitch. Fuck that bitch. I’m going to shoot that bitch.” (96) Harvey said “Man, what did I tell you about you making that kind of comment to me?” (96) Moore responded, “Fuck that bitch and fuck you, Harvey. I will fucking kill that bitch.” (96) Harvey responded with comparably coarse language. (100-1). Harvey told Moore that he was going to tell the judge, and according to Harvey, Moore said “Fuck that. Let’s go in there right now.” (101)

Harvey then went into the courtroom and approached the bench [and disclosed the threat].

Briefs 

• Appellant's Brief 19-CF-687.pdf707.55 KB
• Appellee's Brief 19-CF-687.pdf707.47 KB
• Amicus Curiae PDS Brief 19-CF-687.pdf645.63 KB
• Amicus Curiae DC Brief 19-CF-687.pdf794.6 KB
• Appellant's Reply Brief 19-CF-687.pdf549.52 KB
• Amicus Curiae PDS Reply Brief 19-CF-687.pdf727.64 KB

Should be interesting. (Mike Frisch)