Chandler Criminal Defense

One of the greatest joys of owning a small firm is getting to know the friendly folks at LexisNexis and Westlaw. They often call to see how I’m doing or drop by to say hello, and they never forget to keep me abreast of the latest products from their companies.

I was talking with a friend yesterday, and somehow Lawyers.com came up. Suddenly, I remembered a fantastic sales pitch I got several months ago from my local LexisNexis representative. He was trying to convince me to pay LexisNexis, which owns Lawyers.com and martindale.com, to list my firm on those sites and do the website and search engine optimization for my firm.

Admittedly, I was a little hard on him. I asked him some tough questions about why I would want to pay to be listed someplace where I can’t possibly get the highest rating simply by virtue of the fact I haven’t been practicing for a long time. I also asked him why I would go with them when every other small firm I know also goes with them. What would set me apart? I was even a little mean when he said his web guy couldn’t find me using Google. I wasn’t exactly eager to hire someone who has trouble using Google. I’m not tough to find.

Anyway, when he started talking price, the actual web guy called him. “Hey, we were just talking about you,” the representative said, “what a coincidence!” I too was amazed by such a miraculous coincidence, as it turned out the web guy just happened to call at exactly the right time to tell me about a once-in-a-lifetime, last-minute deal.

When the web guy, who was now on speakerphone, told the representative he could now do it for X dollars, the representative blurted out “no way!” with perfectly feigned disbelief. “That’s an unbelievable price! Can you really do it for so little?” The web guy said he could, and the representative leaned in as if to tell me a secret, explaining it was normally three times as much. “How long can you afford to do it for that little?” The web guy responded, “not for long, I can’t keep a deal like this open forever.” The representative looked at me with a gaze that was half “is he buying this?” and half “please-please-please I need a sale!”

Needless to say, I didn’t sign up. I am, however, very grateful for the fact they gave me an opportunity to witness what I have to say was the best sales pitch I’ve ever seen. It made me wonder if LexisNexis hired a writer from The Office just for my amusement.

I currently represent a client charged with possession of marijuana. By itself, that’s not unusual. What is unusual, however, is that the state claims he had weed in prison. He just finished serving his 18th year, and he’s got a little over 56 years left to go. He’s middle-aged.

Why would the state choose to prosecute such a case? What else can they do to him? He’s going to enjoy his field trips to court. If he goes to trial, it’s going to feel good to wear street clothes and take the restraints off, even if it’s just for a little while. What kind of plea is a “lifer” going to want to take?

The prosecutor knows all of this because I told him. He doesn’t seem to care.

Dockets are already too full. Everyone in the system is already overworked. When I hear about budget cuts, I wonder how much of the budget goes to meaningless prosecutions. Win or lose, the practical effect of my client’s case is going to be the same: it won’t matter. We will all just be a little bit busier for the next few months.

I will file motions. In this case, there may be a lot of them. I suspect I will have to litigate some discovery issues, and I will spend time dealing with voir dire and jury instructions. I’ll write and send out a variety of letters and notices before all is said and done. The state will have to deal with everything I submit, and the judge will have to rule. I will conduct officer interviews, prepare my arguments, and devote a few days to trial.

Trials are expensive. Court personnel will be in attendance, and the sheriff will have to transport my client there from prison. My client will need clothes, and a court reporter will have to be there for all proceedings. Jurors will take time from their busy schedules to attend trial, and the judge will not be hearing other cases. The courtroom will be occupied, air-conditioning blasting.

I enjoy trial, but I’m not crazy about wasting tax dollars on pointless cases. This case is pointless. Does anyone disagree? Under what theory of punishment can the prosecution be justified? Why should taxpayers be forced to pay for such a ridiculous show?

Please, someone enlighten me.

I don’t like taking over cases from other lawyers. In a perfect world, I would begin representing every client before charges are filed and stay with the case to the very end. That said, like pretty much every other lawyer I know, a good-sized portion of my clients come to me from other criminal defense attorneys. They seem to be split evenly between people previously represented by public defenders and people previously represented by private attorneys. They’re usually looking for a new lawyer for the same kinds of reasons.

I hear many people say they want a new lawyer because their lawyer does not return their calls. I usually take that statement with a grain of salt. A lot of lawyers don’t return calls as they should, but some clients have unreasonable expectations regarding their lawyer’s time. Failing to return one out of the fifty calls a clients makes each day is probably not going to make me think badly of another lawyer.

Many people also tell me their lawyer has done nothing. I’ve had clients come in where that appears to be true. I’ve reviewed plenty of cases with great grand jury issues meriting remand, only to look at the case histories and see nothing was filed before the 25-day deadline in the rules. On the other hand, I’ve also reviewed cases for prospective clients where, although I’d like to handle the case, I tell them their lawyer is doing an excellent job. Most commonly, I see that happen in cases where public defenders were involved. No matter how good a job they do, some clients will never be satisfied with a free lawyer.

The most common situation I encounter in initial consultations, however, involves a client who comes to me primarily because they are dissatisfied with the plea they’ve been offered. It happens all the time.

I am pretty familiar with the plea bargaining guidelines for a lot of Arizona jurisdictions. I’m also pretty familiar with how much wiggle room the assigned prosecutor has in deviating from the guidelines. If I see a plea that’s above the guideline range or that appears highly likely to be made more lenient based on my experience with deviations, there is a decent chance the client’s attorney either did something wrong or didn’t do anything at all. The client may benefit from a new lawyer.

Things get more complicated when a client comes to me with a decent plea and claims his lawyer should have gotten him something better. The problem is that the mere act of switching lawyers sometimes result in a better plea. It almost seems like criminal defense attorney sacrilege to say it, but it’s true. It may not happen often, but it happens.

I’ve had clients whose previous lawyers did everything I would’ve done. They filed every motion, made every argument, and submitted a strong request for the state to deviate from the applicable plea bargaining guidelines. The deal, however, didn’t change. I suspect the state probably thought, “as trial comes closer and the plea deadline is about to expire, this defendant is going to cave in and take the plea when he realizes it isn’t going to get any better.” Unfortunately for the state, the client didn’t realize that was the only offer, and instead of caving in and taking the deal, he started blaming his lawyer for everything.

Switching lawyers drags out the process and, at the very least, results in a little more work for everyone. For all but the laziest of prosecutors, it means more time and effort. It means there will be yet another case lingering in his or her already-excessive caseload, and because of that, the prosecutor may come back with something closer to the deal the client wanted all along. The prosecutor also may change the deal because he feels sorry for the new lawyer, whom he may perceive as having just gotten stuck with a difficult client.

The client thinks it’s because the new attorney is amazing, or maybe it just confirms the client’s suspicion that every defendant gets three pleas, the last of which is the best. That criminal defense urban legend was all the rage among inmates in the Pinal County jail about this time last year. Regardless, switching attorneys worked for that client.

It all comes down to one thing: the squeaky wheel gets the grease. Sometimes. Sure, sometimes it squeaks until the plea expires, then ends up taking a worse plea on the day of trial. It also occasionally squeaks all the way through trial and ends up serving an aggravated prison term. But every once in a while, it squeaks at just the right time to just the right prosecutor and ends up with the plea it wanted all along.

In one court, I regularly run into a lawyer who amuses me to no end. He’s a big, boisterous guy with thick gray hair and a deep, booming voice. His general demeanor reminds me of the ghost of Christmas present from the Muppet Christmas Carol. He always wears loud ties, most of which I believe feature some minor Disney character, and he only partially tucks his baggy dress shirts into what I suspect to be a pair of Dickies work pants. It isn’t uncommon for him to wear a jean shirt to court, and I don’t think I’ve ever seen him wear a belt.

None of that really sets him apart from a lot of other lawyers though. What really separates him from the rest is his “PDA.” It’s a stack of note cards. To be more specific, it’s a mismatched stack of a half dozen, slightly discolored, dog-eared, 5×8″ ruled white index cards which he stores in his breast pocket.

A little while ago, I sat next to him and struck up a conversation. We talked about typical court stuff, like how the judge yells at defense attorneys if they’re five minutes late but always starts his 8:30 a.m. docket at 9:15 a.m. It was a normal lawyer-to-lawyer chat, but during a lull, he said “oops, I better check my PDA to make sure I’m supposed to be here” and pulled out his index cards. He thumbed through a few cards and said “yep, looks like I was right.” I was proud of myself for suppressing a laugh. He really called it his “PDA.” I swear.

Perhaps even more humorous is the fact his “PDA” isn’t just his calendar. It seems to replace his court files altogether. He doesn’t take anything else into court. I’ve never seen him with a briefcase. I spotted him carrying a copy of a pre-sentence report once, but I’m fairly certain he quickly transcribed its contents onto an index card and disposed of it.

Before he calls his cases in court, he pulls out his “PDA” and holds it in both hands. As the judge stares him down, waiting for him to say something, he holds the stack of cards a fraction of an inch from his nose and reads the case number off of it. Apparently, everything he needs to a know about his cases is on those cards. If he needs to take note of something, I’m pretty sure he writes it down on his “PDA” with one of those short pencils people use for mini-golf.

I enjoy talking to him. I also enjoy seeing him in court, for obvious reasons. He seems like a smart guy, and he’s extremely friendly. Unfortunately, every time I stand next to him wearing a dark, conservative suit and holding my dark, conservative briefcase, I start to think I take myself too seriously. I probably do.