A Word to the Parents and Loved Ones of Criminal Defendants

In any given criminal case an attorney must to some extent interact with the parents or loved ones of the client who is charged with a criminal offense.  The outcome of these interactions can either have a positive or negative impact on the case.

First and foremost, an attorney is constrained by the rules of ethics such that the attorney is not at liberty to discuss all aspects of the case due to the need to protect client confidentiality.  The client may waive this requirement, but the issue is there and the loved ones of clients must respect that reality.

Secondly, parents and other loved ones must be cognizant of the fact that attorneys are very busy and any time time bringing people other than the client up to speed is time not spent working of the particular issues that need to be addressed for all clients.  As my Contracts Professor used to say “time is capital and is must be spent wisely.”  This is not to say that any good attorney will not be happy to give the client’s family an update but any such requests need to be reasonable and respectful.

Lastly, to all parents and loved ones,  your job is to love your clients; an attorney’s job is to both advocate for their client and to give them the cold hard facts so they can be fully advised as to their options and in the end make the best choice for them.  So parents and loved ones, let the attorney do his or her job.  They are trained to be objective and professional.  Give the attorneys the latitude and support they need to do their best for their client.  This is the best course of action in a criminal case.  And don’t be afraid to ask how you can help.  There are many ways to help an attorney do his or her job depending on the particular case.  The parents and loved ones know the client better than anyone else and can often contribute by presenting options and information that will present the client in the best possible way toward either mitigating the situation or aiding in a raising a strong defense at trial.

 

Domestic Violence Cases Don’t Need a Box

One of my pet peeves as a Criminal Defense Attorney who often works on Domestic Violence (DV) cases is that may prosecutors want a one size fits all, or “Box,” to put my clients in.  This is certainly an easy way to treat these cases but overtly ignores the reality of how some of these cases arise.  To be sure there are many DV cases that involve defendants with power and control issues and the stereotypical victims that are caught up in the “cycle of domestic violence.” And it is also true that a big emphasis is placed on protecting victims of Domestic Violence, which frankly is a major improvement of the “hear no evil, see no evil” approach that was favored in the past.  My view is, however that a “one size fits all” is not workable if justice is to be served.

To illustrate my point, just last week, a client having been charged with violation of a No Contact Order who was facing five years in prison for an obvious violation of a No Contact Order.  My client, who weighs maybe 100 pounds, was prohibited from having any contact with her hulk of an ex-boyfriend (and ex football star).  My client’s ex has been served with a No Contact Order as well that prohibits any contact by him with my client.  The ex just wouldn’t leave her alone and had taken her insulin as well if you believe my client, but the bottom line is that the contact was at least mutually agreed.  I have ample evidence that my client is actually the victim in the relationship and and has been severely assaulted by her ex to include having her top teeth knocked out.

I began relating the “rest of the story” to the prosecutor, with the promise of more mitigating facts so my client could resolve the case in a just fashion.  The prosecutor related that she would knock one year off her recommended sentence and offered 40 months in prison!  The prosecutor explained that she does this with all defendant’s in similar situations; that is where two people violate no contact orders protecting each other against the other.  That way, she says she is able to treat everyone the same.  I object!  You shouldn’t build a box and put everyone in it.  To do justice one must delve deeper and do the hard work to achieve a just result.

I say don’t build boxes.  Keep an open mind, listen and strive to do the right thing; it may be more difficult but it is the right thing to do when you have someone’s freedom at state.

Post script:   This case is going to trial…. We will get a different and eminently more reasonable prosecutor for the trial of this matter and I believe that we may yet resolve this case as well.  We don’t believe in “boxes” and neither do a lot of jurors.

Criminal Defense Lawyering Has A Lot In Common With Fly Fishing

I am both a criminal defense lawyer and a fly fisherman.  I love both endeavors.  Both require some of the same skills.  A lawyer’s job, to simplify things, is to put his or her head around a lot of facts and circumstances in the context of the law and to chart and sail a course that leads to the best possible outcome for their clients.  A fly fisherman, or fisher woman as the case may to be, must appreciate the many factors he or she encounters on a river or stream (which is where I am drawn to) in the context of the laws of nature toward the goal of catching fish (big fish).

In order to catch fish, and I am partial to trout, on any river or stream one must be mindful of where a fish would be, how to approach that envisioned fish and how to present a particular fly to that “envisioned” fish.  I characterize this as “reading the water;” I did not coin this phrase but have totally bought in to the concept.  “Reading the water” is not an easy skill to acquire and is never perfected.  That’s what makes it so fun, to me anyway. Over time, and I mean many, many years, a fly fisherman gains more and more knowledge of the traits of trout.  That is, where, how and why fish lie in a particular type of water and to what artificial fly they are attracted to at a particular time and water condition.  At the same time, the fly fisherman learns and masters how to drop that specific fly in the perfect manner so as to place the fly in the perfect spot, with precision.  Over time, a fly fisherman, having become obsessed and having spent thousands of hours on the river, achieves success to the degree that great fish come to his or her net with regularity heretofore unimagined and in a heart stopping fashion.

All that I just related about fly fishing can be applied to the art and science of practicing criminal law.  Every criminal law case brings a boatload of facts and issues that have to be sorted out, clarified and appreciated in the context of a particular charge with the goal of making the best of the cards that a client has been dealt.  This is simply “reading the water” as it relates to a particular life situation that a client is presented with.  Every fact that is relevant to a criminal case is weighed in the context of how it helps or hurts the client, how it can be used in either negotiating the case or at trial and how it relates to all the other facts.  You see in the law, the cards that have been dealt to a client are not obvious. And it doesn’t matter whether the case involves a DUI, Theft, Drugs or Rustling Cattle…. The prosecuting attorney who wants to convict my client might, for example, think he or she has a good set of cards, lets say two pair (aces and eights).  Well, the attorney’s job is, in part, to convince the prosecuting attorney that he or she does not hold that good of cards or to convince a jury of six or twelve people that the prosecuting attorney does not have a winning hand! That’s what experienced and competent lawyers do.

Like a fly fisherman, an attorney needs to spend thousands of hours on the water (in this case in court and studying and practicing law) to achieve great and consistent success.  There are moments, whether on a stream or in front of a jury, when the fruits of hard work and the passion for achieving success are realized in heart stopping fashion.  This is why I love to fly fish; and this is why I love to practice criminal law…the moments.

 

Anatomy of a Criminal Law Case

You have been charged with a crime.  For most people this comes as unexpected even if it could have been foreseen.  Suddenly, you have to deal with something foreign, something that may effect your life forever.  Many questions come to mind with too few answers. Why would you have an answer or answers?  You wouldn’t; that’s why you need a lawyer to navigate the “system.”

This blog will describe the basic criminal law case from start to finish so those unfamiliar with the criminal law process will have a better idea of the road ahead.

A charging document charges the defendant with a crime and states the crime or crimes the defendant is charged with and when (the crime was committed OR when the charging document was issued?) and to some degree how the crime was committed.

Every case begins with either an issuance of a citation (usually involving lesser crimes or misdemeanors) or a charging document issued by the prosecuting attorney (the State) which is known as either a “complaint” or an “information.”  Additionally, an indictment can be issued by a grand jury, depending on the jurisdiction in which the crime was committed. An indictment is another form of a charging document.

A person is either arrested on the charge and brought before a judge or “summoned” by mail into court to be brought in front of a judge.  This court appearance is typically called an “arraignment.”

At the arraignment, with a few exceptions, a plea of not guilty is entered.  If you don’t have an attorney one will appear for you and if you cannot afford an attorney, an attorney will be appointed for you at no expense.  Moreover, the question of whether you should have to post bail is addressed.  The judge determines if you should be released with a promise to appear or whether the judge should require you to post money or a bail bond (essentially a promise of an amount of money or property) which is forfeited if you fail to appear for the next court date.  You obtain a bail bond from a business known as a bail bond company. They, for a fee, post a bond for you. Usually it costs around 10% of the bond amount.

The judge’s decision to set a bail amount is based on whether you are likely to appear at the next court date and/or whether you are likely to commit a serious crime or interfere with the administration of justice once you are released. After the arraignment you are either released or you are taken into custody (if you were not arrested) until you post bond.

Once your case has started, your attorney will appear on the case by filing what is called a Notice of Appearance and Request for Discovery.  This tells the prosecuting attorney and the court that you now officially have an attorney and that he or she wants, for a start, all the police reports and access and notice of all the evidence for the State’s case.

After the start of the case you will, hopefully, be advised more formally on the details of your case.  Your attorney’s job is to assess your case by reviewing the discovery, and to investigate any further matters pertaining to the case.  Essentially the attorney’s job is to, through the lens of experience and legal training, determine the hand you have been dealt.  Your attorney will apprise you of the merits of your case and as the case progresses keep you abreast of the game plan for your defense, which may change over time as more is revealed.  This is a simplification of the process, but your attorney is trying to do two things: negotiate and present your best side to the State toward the goal of reaching an acceptable resolution while at the same time assessing the merits of your case as if it were to proceed to a jury trial.  A good attorney assesses everything toward these two goals.  The cards you were dealt are not static. A great attorney can turn a bad hand into a winning hand at trial.  This concept cannot be described, but can only be appreciated by attorneys who do this for a living or those who are well read on the subject.  Think back to the O.J. Simpson trial and the cards he was dealt and how they were played and you can appreciate what I am saying.  Whatever your opinion on that case is, you have to be amazed by the “lawyering” of O.J.’s attorneys.

The process of your criminal case can be over soon or last a long time as the goals of mitigation (settling) and litigation (trial) are explored.  Keep informed by your attorney.  Let your attorney know the things that are most important to you in terms of an outcome.  The more you communicate the better.  Your attorney’s job is to represent and advocate for you.  Trust your attorney to do his or her job and protect your interests.

Ultimately, your choice as the client will determine whether to settle the case or go to trial.  This decision may be easy or not but a good attorney will insure it is an informed decision.  There are risks associated with going to trial and the reward of winning may not outweigh the risk of losing.

Stay focused during the process.  Ask the questions that come to mind and remember: things generally are not as bad as they seem and there is nearly always light at the end of the tunnel, our justice system is not perfect, but it is much better than most. Thomas Jefferson once said our jury system is “The best of all possible safeguards for the protection of the person, property and reputation of every citizen.”  I have tried over 200 felony cases before a jury and believe without a doubt the Mr. Jefferson was right!

What makes a great criminal defense attorney?

As a defense attorney I spend many days in court observing other defense attorneys. I began my legal career as a law clerk for a trial lawyer, and continued as a prosecuting attorney for fourteen years. I’ve had the opportunity to to observe hundreds of criminal law attorneys.  I have seen them in court and seen how they interact with clients, the public, the court and juries.  What makes some defense attorneys better than others? What makes an attorney great?

First, great attorneys were not always great, they paid their dues. It takes a long time to master the skills necessary to be a great defense attorney.  The skill as a trial lawyer only comes through hard work and many, many jury trials.  Great trial lawyers are made, not born.  Having said that, some people are not cut out for it.  You need the right temperament, personality and the ability to think on your feet.  You have to have a great body of knowledge on court procedure and what lawyers call “black letter law” at the forefront of your mind and the ability to call upon this knowledge in an instant.  It is also paramount that you are a people person and that you can relate sincerely to many types of people that might sit on your jury.

A great defense attorney should also be a good advocate both orally and in writing.  They must be clear,  succinct and articulate.  As a law clerk I had the opportunity to read and dissect hundreds of legal memorandums (briefs).  The good briefs were clean and these attorneys presented thorough and succinct arguments supported by good law and there was not a lot of fluff or unnecessary verbiage.  Bad briefs were more often than not too long, filled with extraneous material and simply made your stomach tie in knots because they were so disjointed.

Another essential attribute of a great defense attorney is the ability to listen well.  They must tune in and listen to their clients to whom they owe their best efforts. They must listen to witnesses while they are on the witness stand whether they are being examined by the prosecutor or the defense attorney.  This crucial process of listening and thinking about what is being said must go on for hour after hour.  This is extremely important and very exhausting.  The minute an attorney puts down his guard or becomes distracted, they are sure to miss some important point which could put their client’s liberty further at risk.

Great defense attorneys must be great negotiators.  Going to trial costs money and is risky. Most cases settle for one reason or another, instead of going to trial.  A great negotiator can work a case so that his client has a better reason to resolve his or her case rather than go through the added expense and risk of trial.  Part of being a great negotiator relates back to being a great trial attorney.  A great trial attorney has the respect of the prosecutors and is able to use their trial successes to their credit. Imagine a defense attorney who has never gone to trial, who has never made a stink, who has never put the state to the task of going through trial?  Not a good formula for success.  Simply put, the better the trial attorney you are the better the deal you can get for your clients.  Great trial attorneys, without even trying, intimidate a lot of prosecutors and get then to lighten up because of it.

Great defense attorneys are professional.  They are always, always prepared.  They are courteous to both the court and the opposing counsel. A great defense attorney pushes only when necessary and goes for the jugular only when the time is right: after they have established that they are professional and the outrage is appropriate from what has transpired on the witness stand.  Juries want any attorney to be professional but they also expect an attorney to fight for their client.  When I pick a jury through a selection process called Voir dire, I always make it clear that I am there as my clients “champion” and that I am going to do my job, which entails what I call “making a stink.” I let them know up front that I am not going to lay down without a fight!

It is important that great defense attorneys look the part.  They dress as sharp as they can and pay attention to how the look down to their shined shoes.  It reinforces the fact that they own the courtroom and they respect the decorum of the court.  It simply adds to the attorney’s credibility.  First impressions count.

Lastly,  great defense attorneys have personalities and a great sense of humor.  They like people and people like them.  Much of the “lawyering” that goes on is the “you catch more bees with honey” kind of thing.  As a former prosecutor, I would always give the same or even better deals to someone who I really liked.  I tried to be be consistent but in those instances where I could go one way or the other, and I did not like the defense attorney, it was hard sometimes to go that extra mile for them.  This is basic human nature.

In closing, these thoughts are what pops into my mind when I think about what makes a great defense attorney.  What a defense attorney can do is a reflection of that person’s innate personality and what they have done in the trenches; what they have done to achieve the goal of being a great defense attorney.

When you go looking for a great defense attorney, ask the attorney what they have done and how they go about practicing law with the above thoughts in mind.