Archive for January, 2009

Criminal Defense Trial Records

Wednesday, January 28th, 2009

I’ve recently had a few clients mention to me that they had initial consultations with certain Phoenix-area attorneys who boasted jury trial records of more than twenty acquittals without a single conviction. I would have assumed they were exaggerating if they weren’t all saying the same thing. Maybe I’m wrong, but it seems to me that attorneys with jury trial records of twenty or more wins without a loss are exceedingly rare. I’m certain there are attorneys out there with records like that, but multiple attorneys within a five-mile radius?

In my experience, a case that’s close to a guaranteed winner will get dismissed prior to trial more often than not, so the ones that go to trial tend to have a less than perfect defense. That’s the way the system usually works, even in Maricopa County (shocking, I know). Also, I think that any criminal defense attorney who has handled a decent number of cases has encountered at least one client who insisted on taking a loser case to trial. Sometimes, you just can’t talk them out of it. A lot of attorneys call those trials “long-form guilty pleas.” I’ve spoken with some excellent attorneys who have a wealth of knowledge about the most effective defenses to use in such cases, but they’ve never claimed to have more than a 50% success rate with them.

Arizona’s jury trial statistics also seem to suggest that undefeated trial attorneys are rare. Some quick internet research tells me that over 1800 criminal jury trials took place in Arizona’s Superior Courts in 2008 and that less than 300 of those resulted in acquittals. Those are hardly perfect numbers, and I may be misunderstanding the data on the Arizona Supreme Court’s website, but I think I’m at least in the right ballpark. That means roughly five out of every six defendants who go to trial are convicted. It’s possible that a large number of acquittals are achieved by relatively few attorneys, but it seems to me that winning twenty consecutive trials is something of a statistical anomaly, even for a highly effective criminal defense attorney.

I doubt those lawyers are lying. I can see a highly experienced attorney passing off ugly cases to the associates they supervise in order to keep their personal trial records untarnished. If that’s how they keep up their record, I’d be curious about what their office’s record is. That is, after all, the more meaningful statistic for a prospective client who may get his case transferred to one of a number of lawyers.

They could also be employing creative record-keeping methods. I’ve heard some attorneys only count “good trials” in their records. In other words, they don’t count the ones they didn’t think they could win or the ones they did grudgingly. They also may not be counting appointed cases or ones that took place prior to entering private practice. If they’re former prosecutors and have never done a trial as a defense lawyer, they might claim a “100% trial success rate.” They may say that if a client is found not guilty on the majority of counts, it’s an acquittal. They may keep track count-by count. Personally, I think there’s something very deceptive about some of those practices, though I believe they are somewhat common.

I think the vast majority of clients don’t care about an attorney’s trial record. Most of my clients never ask, and I personally think that discussing trial wins and losses can be a dangerous thing, whether you have a terrible record or a great one. I wouldn’t be surprised if attorneys who advertise their perfect trial records find many of their clients hire them for that reason alone. There are a lot of factors that go into hiring an attorney, and the likelihood of a bad match is high when the client only focuses on one factor. You also have no idea how the client is going to respond. One of my clients said he didn’t hire one of the undefeated attorneys because he figured the attorney was “due for a loss.” To me, that makes the process of hiring an attorney seem like something akin to placing a college football bet (or numerous friends’ wise but upsetting bets on last year’s Super Bowl).

A criminal defense attorney’s trial record (or more importantly, his or her trial experience) is definitely something to consider, but it isn’t the only thing. Depending on how the attorney counts wins and losses, his or her trial record may not tell you very much at all. If those Phoenix-area attorneys do indeed have such excellent records without having to resort to passing off cases or creative counting, I am impressed. However, like with a lot of statistics, it’s probably not quite as informative as it would seem to be at first glance.

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Posted in Practice in General, Trial | 2 Comments »

Why Do We Do It?

Friday, January 23rd, 2009

I can’t remember ever disagreeing with anything Bobby G. Frederick has written over at the South Carolina Criminal Defense Blog, but I definitely don’t feel the same way he does about something he says in this post. I really like the term “cause lawyer,” which I’ve never heard before, but I can’t say I agree with this:

Defense attorneys, by and large, don’t do this for the money. We have to pay the bills and run an office, and compensation is good, but we do this because we love what we do and because we believe in what we do, whether it is helping people or whether it is fighting to preserve what little rights we have left as citizens.

This might be petty, as I’m just disagreeing with his generalization because my generalization would be different, but I think the vast majority of defense attorneys do it for the money. I also think an extremely small number of criminal defense attorneys are actually cause lawyers. That includes public defenders. I think you could probably fit all of the cause lawyers in Arizona in one courtroom. It’s a big state, and there’s no shortage of criminal defense lawyers.

I think most defense attorneys have at some point had a vague desire to help people, but I don’t see a lot of my colleagues really fighting for anything. They’re usually just mad about the daily headaches inherent in criminal practice. It’s more about them than it is about their clients. Their primary concerns involve office politics at the PD or keeping the lights on in their office. A friend of mine uses the term “broken lawyers.” I like that term too, and I think most defense attorneys fit in that category, not the “cause lawyer” category.

I see lawyers abandon their clients in some way or another every time I sit in court. I see attorneys talk to the judges ad naseum about privileged information when their clients miss hearings. I’ve seen attorneys make illegal immigrants plead guilty to conspiring to smuggle themselves. I’ve seen pleas to higher-than-charged offenses. The vast majority of private attorneys rarely show up on time, and they almost never warn their clients. The clients just sit there looking desperate, wondering what’s happened to the guy they paid to help them. Cause lawyers wouldn’t do that, would they?

A lot of criminal defense attorneys aren’t much better out of court. When they talk about their clients, it’s as if they aren’t real people. They’re this group of rascally little children. “My clients just don’t get such-and-such.” “They just don’t understand this-or-that.” It isn’t unique human beings with families and jobs and hobbies and dreams; it’s a class of people they’d never befriend. I think that kind of attitude is especially prevalent with a certain type of public defender. Cause lawyers wouldn’t think like that, would they?

Seeing those things so frequently tells me most criminal defense attorneys aren’t cause lawyers. They don’t do it to fight for something, but because it was the first thing they learned after law school. I don’t know an awful lot of lawyers who have switched practice areas. They start with something and stick with it. They use what they’ve learned and try to make more money with it. I hear more defense attorneys say they left the PD for more money than I hear say they left to be able to give clients more personal attention. Most of the prosecutors I know who have become defense attorneys did it for the money, not because they couldn’t sleep at night knowing they might be sending innocent people to prison. Most people don’t become defense attorneys to make big money, but to be more comfortable. They need a job. Existing costs a lot. Most of the rest do it because they’re stuck. It’s a select few that do it to help people or fight to preserve our few remaining rights.

This is probably my most cynical post yet, but I’ve seen some particularly bad lawyering lately (posts will be coming soon). Because I’m curious if I’m the only one with such a gloomy outlook, I’d like to know what you think. Here a simple poll for my amusement:



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Posted in Practice in General, Professionalism | 5 Comments »

I Will Never Recommend These Lawyers to Anyone

Wednesday, January 21st, 2009

Last week, I discovered one drawback of having some of my favorite blogs link to us. With the increase in traffic has come spam. Lots of it. Occasionally, an obvious spam comment slips past our filter, but it doesn’t bother me. I delete it, and life goes on. It normally involves male enhancement or someone willing to do something that’s illegal in the deep south.

It looks like some new lawyers have jumped into the fray. Taking a cue from viagra vendors, some scumbag attorneys have decided to spam my poor little blog. They put up stupid comments talking about how great they are and linking to their website. The spam comments were completely unrelated to the posts. I won’t provide a link, as it will just encourage them. If they’re attacking little-old-me with spam, they are probably big enough to have more visitors than I do. A small number of people will notice me complaining about their marketing practices, but my link will probably just make them look more important. I’m pretty sure it’s a losing fight, but please correct me if I’m wrong.

I’ve purposefully avoided discussing marketing here, as I don’t really have much to say on the subject. When I started this blog, this was my thought process: I like writing. I need an outlet to complain about the things that frustrate me and make me eager to get to work each day. I want to learn HTML and PHP in my spare time. Blogging seems like a good way to combine all of that, right? I vaguely thought it might somehow serve as a marketing tool and possibly bring in a client or two if the content was good enough.

Well, I turns out I’m bad at marketing. I doubt the firm has gotten a single client because of this blog. I haven’t learned HTML or PHP very well either (try using the search function on this blog). On the other hand, I’ve enjoyed blawging, and I think I’ve written some decent posts. Blawgers seem to be a fairly close-knit community, and I’ve had a good time meeting and communicating with other blawgers. I learned there are some things I didn’t think mattered that do matter (like giving your blog a promotional name), and things I did think mattered that don’t matter (for some reason, I thought it was common courtesy to ask someone before putting them on your blogroll). I think I’m pretty aware of blawging customs at this point.

What those spamming lawyers did is more than just against custom. I view it as tantamount to spray-painting the outside of my office building with their name and number. It wastes my time cleaning it up and tells me they are either unethical or too incompetent to properly supervise their staff. If it’s an ethics issue, I think it will self-correct. An attorney who trolls blogs and self-promotes with comments-spam is probably nearing the end of his or her legal career (or so I hope). If I were an inadvertnently-spamming lawyer, I’d still be worried about my state bar ethics committee if I didn’t address it ASAP. If my marketing guy went too far, I’d rein him in or fire him. It’s the only honorable thing to do.

I won’t pretend to be all high and mighty. I also won’t try to shame spammers in general, as plenty of far better blawgers have already done that. On principle, I’m not putting any links in this post. Check my blogroll for people with good things to say on the subject. All I have to say is the following for the sleazy attorneys who spammed me: if you messed up and hired a shady SEO guy, you should be prepared to apologize and fix the problem. If you’re so desperate for clients that you resorted to spamming other lawyers’ sites, you should probably focus more on the quality of your legal services. I didn’t appreciate taking the time to delete your irritating comments, and I bet you didn’t earn yourself a single client doing it. I think I’m not alone in saying that under no circumstances would I ever consider recommending you or your network to anyone.

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Posted in Ethics, Marketing, Practice in General, Professionalism | 3 Comments »

Is Gilbert The New Castle Rock?

Saturday, January 17th, 2009

I recently had a change of plea for a DUI in Gilbert where I started to feel like I was in a Stephen King novel. Gilbert has several policies that seem extreme even in Maricopa County. Matt has previously pointed out Gilbert’s policy for vehicles impound in a previous post, so I’ll concentrate on two other aspects that irk me.

First, the plea deal stipulates to five years of probation. In my opinion that is simply absurd. Why in the world does a first time offender need a probation period of 60 months? The judge was gracious enough to modify the terms so probation terminates upon completion of certain alcohol classes. An individual unlucky enough to get stuck with the full five years might be dragged back in front of a Gilbert court half a decade down the road and face jail time up to 179 days if he or she gets charged with a new crime or some probation violation (like consuming alcohol or disorderly conduct). It seems like a policy designed solely to keep the government in people’s hair as long as possible. Some people probably need a long probation period; first time misdemeanor offenders aren’t those people.

Second, the judge, who I thought was very cordial and pleasant to deal with, instructed my client that he would have to provide proof of a loan denial from a bank in writing within four weeks in order to qualify for a payment plan. Otherwise, the entire fine would be due. I’ve never heard of a court having such a requirement. When I asked if this was a new policy in Gilbert, the judge said that the previous presiding judge had instituted the rule and that it remained in effect. I think the judge actually felt bad about the policy, and I can see why. Not only does this mean the client now has to take more days off work to go to a bank, apply for a loan, and go back to the courthouse instead of simply being placed on a payment program the day he pleads guilty, but it also means Gilbert is requiring people to get a credit denial in order to qualify for payment programs. Maybe Gilbert wants to help out the payday loan business? Maybe they think a reduced credit score is proper punishment for a DUI? I know that someone pleading to a DUI isn’t the best poster child for empathy, but does Gilbert feed off of human misery? Perhaps I took this one a bit personal since I detest pleading out drug metabolite DUIs when I feel the client wasn’t impaired at the time of driving.

My client accepted the plea because it reduced his license suspension by almost a year and guaranteed minimum jail time and fines, etc. I feel he is satisfied, but I didn’t like it. I couldn’t help looking over my shoulder as I left the building to see if some dark, brooding storm cloud hovered over the courthouse.

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Posted in Government Rants, Practice in General | No Comments »

Lawyer Stage Fright

Thursday, January 15th, 2009

I’ve seen plenty of attorneys let their nerves get the better of them in the courtroom, but I rarely hear attorneys discuss stage fright. Why don’t we talk about it? It negatively impacts the quality of representation for many defense attorneys, and I’ve seen prosecutors spend whole trials looking like deer in headlights. I know a fair number of prosecutors and defense attorneys who desperately plead out their cases because they fear trial.

I don’t remember anyone discussing ways to deal with stage fright in law school, and I don’t think most public defender or prosecutor training covers it in any real depth either. The advice seems to just be “keep doing it until you aren’t nervous anymore,” but for some people, just doing it over and over again isn’t going to fix anything. Plus, if you’re doing a terrible job over and over again, your clients are suffering. It’s not just your reputation on the line. You’re training with people’s lives.

The lack of nerve-talk among lawyers surprised me when I first started practicing law. Prior to being a lawyer, I was a musician. My whole background was in music, and I come from a family of professional musicians. Musicians love talking about stage fright. It’s basically an obsession, as conquering nerves, or at least minimizing their physical effects, is essential if you want to perform at a reasonably proficient level. Almost every musician has serious stage fright at some point in their career. Any decent private music teacher covers it with students. Music schools have countless resources available. There are even specialists you can see. Musicians read Zen in the Art of Archery and The Inner Game of Tennis. They practice breathing and other relaxation techniques. They seek out frequent performance opportunities for the sole purpose of applying the techniques they’ve learned. With numerous resources available and plenty of tried and true methods, most musicians learn to control their nerves well enough to perform at or near their actual level of skill.

Isn’t it odd that lawyers don’t pay as much attention to stage fright as musicians do? It’s just as big an issue for attorneys, and I suspect nerves cause a lot of smart people who might be great trial lawyers to look to other areas of law. I once judged a moot court competition where one law student was so crippled by stage fright that he couldn’t get through his closing. He’ll probably never try anything like that again, and who knows, maybe he’d be a great trial attorney. He seemed pretty bright and articulate one-on-one. Where are the resources for him? Where are the CLE courses for a practicing attorney with the same problem? I see a lot of dumb CLE courses in the brochures I get. There are a lot of dumb law school courses. I think lawyer stage fright is something that deserves a lot more attention.

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Posted in Practice in General, Trial | 1 Comment »

Tribal Probation

Monday, January 12th, 2009

If you are serving a term of probation for a conviction in the Gila River Indian Community Court, you can spend the entire term of probation in jail if you violate a single condition of your probation. That means that if you’re doing a year of probation and fail to check in or get caught drinking, you could do a year of jail. No matter how long your term of probation is, you can get the same amount of jail. By stacking counts, the courts can put defendents on probation for years. That probably means years of jail sooner or later.

When I first handled a Gila River Indian Community probation case, almost every defendant automatically got the max unless the prosecutor was willing to cut them a deal. Prosecutors loved it. They had a lot of power. Defendants and defense attorneys hated it. Luckily, things have changed. The judges still almost always sentence defendants to the maximum jail term, but at least you have a chance of convincing them to knock off a little time. My argument has always been that defendants should be given an appropriate jail sentence for the original charges, not an automatic sentence based on their performance while on probation. If it’s any other way, the court will essentially be punishing them for seeking treatment.

Because of the way the system works, I usually discourage my clients from taking probation offers. Let’s say the client has a serious drinking problem. He needs help. He desperately wants help. He’s given a choice of thirty days in jail or a year of probation. Probation would get him the services he needs, but he’s likely to relapse. When he does, the probation department will be unsympathetic. They hate it when you miss appointments. Drinking and drugs are icky. Just cut it out, okay? He’ll probably end up stuck in jail for a long time. The real choice he has to make is whether he’d like to do thirty days of jail right away or do a year of jail when he gets busted for something sometime in the future.

Although prosecutors seemed to ignore my argument that they should treat probation as a suspension of the sentence for the actual crime, amazingly, I think they’ve finally started listening to my suggestions. Now, the pleas they offer have a clause saying the defendant “shall be sentenced to” a term of jail which is suspended for an equal term of probation. Basically, the new pleas do exactly what the courts used to do automatically. If you’re caught smoking marijuana, the offer might be one year of jail suspended for one year of probation. When I first saw it, I couldn’t stop shaking my head. Seriously? I haven’t dealt with a probation violation for one of these pleas, but I imagine the prosecutors have successfully returned things to the good ol’ days. I’m sure they’re very pleased with themselves.

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Posted in Indian Law | No Comments »

Should We Really Try More Cases?

Friday, January 9th, 2009

I don’t completely agree that defense attorneys need to try more cases. I think a lot of defense attorneys are plea mills. Those attorneys definitely need to try more cases. However, trial is often too risky an option for many clients to seriously consider. I can’t blame them.

In Arizona, mandatory minimums give the state an incredible amount of leverage. Someone accused of a dangerous offense or a dangerous crime against children is guaranteed a stiff prison sentence if they’re convicted. If you have any prior felony conviction and are accused of a felony offense not involving personal drug possession, you are not eligible for probation. You must go to prison if convicted. If you have two allegeable prior felonies and are accused of a felony not involving personal drug possession, there is no way you will get less than 2.25 years, even for the silliest felonies. If you’re on felony probation, you can get no less than the presumptive sentence. Certain mandatory-prison offenses require that prison time on all counts be served consecutively. When the options are taking a plea and going away for a few years or spending life in prison if convicted, it’s a no-brainer for many clients.

On top of that, juries can be unpredictable. I had one case with a split verdict (guilty on count one, not guilty on count two) where the jurors were eager to talk with me afterwards. I was both fascinated and horrified by the glimpse I got into the inner workings of that jury. Apparently, they went into deliberations unanimously agreeing that my client was not guilty on count two. I was sure they’d convict my client on that count. On count one, they started deliberations with one juror in favor of a guilty verdict and eleven jurors in favor of a not guilty verdict. That one guy convinced the others to convict my client because he noticed my client blinked too much during the part of my closing where I discussed that count. You never know what kind of weird things the jurors consider in reaching a verdict. Combine that with harsh sentencing laws, and trial just isn’t something many defendants are willing to do.

I wish I could try more cases. In fact, I am still bothered by a few cases I would’ve liked to have taken to trial, but what do you do when the state offers your client a misdemeanor plea with no jail and one year of probation on the eve of trial and he’s looking at a mandatory 2 to 8.75 years in prison? Cases that should go to trial but don’t are especially common when your client isn’t in the country legally. Often, illlegal immigrants insist on pleading guilty because it allows them to be released months earlier than they would be if acquitted at trial. Illegal aliens aren’t bailable, so they have to remain in jail pending trial. If they’re going to be deported no matter what and don’t care to ever come back, a victory at trial is meaningless. Why not just get deported as soon as possible? Again, I can’t blame them.

In theory, I agree that attorneys should try more cases. I wish I could try more cases. However, I don’t think defense attorneys in general need to try more cases, at least until our sentencing laws get a massive overhaul.

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Posted in Practice in General, Trial | 2 Comments »

No Poll

Monday, January 5th, 2009

As you can tell, we went ahead and picked a name. We appreciate all the suggestions and comments as well as the logo, but we ultimately decided we should call the blog something that actually describes what it is. We are in Chandler. We practice nothing but criminal defense. We just blog about things we feel are relevant to the practice of criminal law in Arizona. An increase in search relevance isn’t a bad side-effect (people searching for the terms “brown” and “little” probably aren’t looking for a lawyer), and it avoids words that, like “desert” or “justice,” might be cheesy or misrepresent what we do. Now we’ll stick to putting up posts, hopefully more frequently.

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Posted in Uncategorized | 4 Comments »

Accepting Responsibility Government-Style

Monday, January 5th, 2009

I was really struck by this post, but not for the reason its author was struck by the Met Commissioner’s apology. I know it’s old, but I’ve been busy. Sorry.

Anyway, maybe I’m misunderstanding him, but I’m surprised David Friedman would think that apology was in any way out of the ordinary. I’m pretty sure apologies from the government are usually meaningless. I imagine it’s the same everywhere. I’m not thinking as much about when wrongful government action kills people as I am about when the government wrongfully charges people. If you’re wrongfully charged, unless you spent a lot of time in prison or were on death row, “be thankful we eventually dismissed your case” is probably the best response you’re going to get.

The state is probably going to try to make you feel like it’s doing you a favor by not pursuing a case they don’t have the evidence to prove, and I bet the prosecutor still thinks you’re guilty no matter what the facts are. No one’s likely to say “our bad.” Definitely don’t expect to hear “sorry you had to pay for a lawyer, sorry your friends and family may never look at you the same way, sorry you lost your job, sorry you spent months or even years of your life waiting for trial.” Even if you’re lucky enough to hear that the government “accepts full responsibility,” I doubt any government employees will really be made to consider the harm their wrongdoing or incompetence caused. If someone is fired, it was probably because someone higher up in the pecking order (likely the actual person responsible for the injustice) had to pin it on someone. It’s politics as usual. It certainly isn’t because of remorse.

Government employees likely aren’t going to be inclined to accept responsibility in an individual capacity either. I suspect it’s discouraged, and even if it wasn’t, I don’t know many prosecutors who really think about the day-to-day consequences of their work. Are there any prosecutors reading this right now who have lost sleep after wrongfully charging or pursuing charges against someone? Have any of you ever acknowledged that a defendant who won at trial or whose case was dismissed due to lack of evidence wasn’t merely “not guilty” but actually innocent? Have any of you personally apologized to a defendant? If your supervisor found out you had informally apologized to a defendant without permission, would you be reprimanded?

I think I know the answer to those questions, and I have a hunch the average innocent criminal defendant would be lucky to hear something like what the Met Commissioner said.

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Posted in Government Rants, Practice in General | 1 Comment »

New Blog Name

Thursday, January 1st, 2009

It was recently brought to our attention by Scott Greenfield of Simple Justice that calling this blog “Brown & Little, P.L.C.” might be dissuading other blawgs from linking to us. I can see his point: it’s just too promotional. On top of that, it isn’t very creative. Personally, I’m the kind of guy who sees no problem naming a dog “dog” or a goldfish “goldfish,” but I have to admit a name change is probably in order.

We will officially change the name soon, but we’d first like to get some input. We keep getting stuck on Scorpion-themed blog names, as we’ve always wanted the kind of dignity and respect animal law firm mascots command. “The Scorpion,” “The Scorpion Kings,” “Scorpion Justice,” and “The Stinger” are all possibilities, but none of them seems quite appropriate. Neither does the “John A Kesler Report,” as only about ten people would get the joke, only about five of those people would think it’s funny, and I’m not enitrely sure John A Kesler would be okay with it.

Can anyone suggest a good name? Scott mentioned “AZ Crime Guys.” We are also considering “BLinD (Blogging Lawyers in Defense),” “Defense in the Desert,” and “Desert Defense.” If you email us your suggestions or put them in the comments, we’ll pick our favorites and put up a poll to let you decide. Have fun.

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Posted in Uncategorized | 18 Comments »