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Arizona Sentencing Laws Meet My Least Favorite Word: Policy

Thursday, September 2nd, 2010

It’s no big secret to regular readers of this blog that Matt does the heavy lifting around here. Frankly, he does 99.999% of the lifting. I was finally, again, inspired to write out of deep frustration. I often feel as an Arizona criminal defense attorney that I operate in a separate world from attorneys in other states because of Arizona’s especially draconian sentencing requirements. Arizona legislators seem to take pride in steppin’ it up a few notches every couple of years to save our citizens the embarrassment of getting lambasted by Texans laughin’ at our sissy laws. 45 days for a first time DUI if the blood is high enough? We got that. 10 year minimum for possession of a single photo deemed child pornography, with mandatory consecutive stacking for additional pictures or videos? No problem. Do we worry that a person is likely to get less time for actually raping a child than possessing one or two photos of the child nude? Hell no. Immigrants? Better have your papers in this State. I don’t necessarily think it’s harder to practice criminal defense in Arizona, just more frustrating.

The case that brought me to near tears in court this year didn’t involve DUI or children. Rather, it was a fraud case where my client wrote several unauthorized checks for small amounts. She found her ex-boyfriend’s checkbook in a box; they separated months earlier after living together for two years. It was a simple case. The State had photos of her at the bank and copies of the checks. She was charged with several counts of forgery and, shockingly, a class 2 felony count of control of a criminal enterprise.

Unfortunately for my client, she pled to two minor drug charges a month before committing the bad check offenses. She hadn’t had time to get started on probation and kick her drug habit. We had evidence that she was being strongly influenced by a couple of shady individuals who received the bulk of the money but managed to avoid prosecution. We didn’t think we could have won at trial on a duress defense. She was a thirty-year-old mom and had no prior felonies a few months before writing those bad checks. So what is a reasonable absolute minimum should she lose at trial?

How about 15 years on the class two and 10 years if she lost on any of the class 4 felony fraud charges? Yep, good ol’ tough mandatory sentencing Arizona style. Because she was on probation, she could receive no less than the presumptive sentence. Her petty drug charges, which I’m guessing in most States would never have been felonies, maxed her out on the repetitive offender sentencing guidelines.

Fortunately, a safety valve exists on ridiculous mandatory minimums: reasonable plea offers. Unfortunately for my client, she resides in Maricopa County. I was appalled to find myself fighting tooth and nail for plea that would get my client less than half a decade. Why? Policy. Before I was assigned the case, my client rejected her initial offer of between 4.5 and 7 years. We had evidence she didn’t understand the plea when it was offered. However, without getting the previous attorney to admit to misinforming the client (yeah, right), we had to fight for a stipulated sentence far above anything remotely resembling justice.

I found myself fighting back tears when speaking to her family. Explaining to mom that her daughter was going to serve four-plus years over some checks totaling less than the value of a Yugo had me fighting frustration that felt near primitive. I felt like a failure. Ego is a fact of life for all trial attorneys, but especially for criminal defense attorneys. We all feel the prick of defeat even when deep down we know that that particular client didn’t get a raw deal. This case felt more like a sword thrust than a prick.

I worked her case hard. I think I’m usually pretty darn good at getting good plea offers. By the numbers, I got her a quarter of her potential minimum sentence if she lost at trial. It didn’t remotely feel good. This time, I felt I got put through the wringer by Arizona law and ridiculous policy guidelines, and nothing I did made it close to just. I told her more than once that she was the poster child for unfair law and policy.

I’m fond of the term “Perfect Storm.” I don’t use it here because it implies a rare convergence of events. Here, it’s just policy. I hope policy changes in Maricopa County. I’m not dumb enough to hope legislators start repealing absurd laws.

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

A Victim of the Drug War

Friday, August 6th, 2010

I recently had a settlement conference for a client I really like. He’s a nice guy who never ceases to make my days a little brighter each time I see him. When I first met him and asked if he had any criminal history, he told me, “I have a terrible criminal history…terrible!” He said it like he was Richard Pryor in the middle of a stand-up routine, but it turned out he was right. Indeed, he was no stranger to the system. Based on his honesty, however, I knew was going to like him.

He had a lot of prior felony convictions. Looking through his past, though, I could see that he never really hurt anyone except himself. He was an addict, and he kept getting busted. He never got a break. He never conquered his demons. His personal drug habit eventually led him to make small-time sales, and by the time I met him, he’d amassed a significant criminal history. He stood accused of making five separate crack sales to an undercover officer. They were all videotaped and partially witnessed by other officers.

Because he was on parole at the time and due to his priors, he faced a ludicrous amount of time. By my calculations, confirmed by the settlement judge and prosecutor, best case scenario losing at trial was virtually guaranteed to be no less than 31.5 years flat. By “flat,” I mean he’d have to serve every single day. No early release. He’s approaching forty and has a son who is a toddler.

I always tell clients there are two kinds of settlement conferences, the kind where the judge is going to scare them into pleading guilty and the kind where the judge leans on the prosecutor to make a better offer. This one was a little of both. The judge we chose always gives this incredible speech that can make damn near anyone plead guilty. That’s probably why the prosecutor wanted to use him. I wanted him because I knew a settlement in front of him was my client’s best chance of getting the prosecutor to budge on the offer. The judge’s intensity cuts both ways. Turned out the prosecutor and I were both right. She dropped a huge amount of time off the plea, and my client ended up pleading guilty.

It would have been a tough case to defend. That’s putting it lightly. Entrapment wouldn’t work because we’d have to show the client wasn’t predisposed to commit the offense; he’d pled guilty to the same thing twice before. Brainstorming, I explained that to the client and he looked at me, exclaiming “but people change!” He smiled to let me know he was making light of the situation. Like I said, I really like the guy. Unfortunately, the videos were crystal clear. The authorities were thorough in putting together their case.

Mitigation wasn’t easy either. Explaining to a judge how affable your client is won’t exactly get him a super-mitigated sentence, even if it’s true. Talking with him about mitigation, he made one of the funniest little speeches I’ve ever heard:

It’s crack, man! It ain’t meth. Everyone loves meth these days. You know how embarrassing it is to be sellin’ crack? You can’t give away that shit no more! Sure, it’s a bad, bad drug, but it ain’t like no one’s gettin’ no blowjobs for crack. It ain’t 1984. It’s only undercover officers and busted old crack ho’s buyin’ it. It’s a retro drug.

I doubt that would’ve been effective mitigation at sentencing. He has a genuineness about him that makes his humor both heartfelt and tragic, but I think that would be lost on all but the rarest of judicial officers.

As a result of the plea he entered at the settlement conference, my client is now serving over a decade in prison. Meanwhile, I toss and turn trying to sleep at night. I am depressed about the outcome. Even at happy hour yesterday with a bunch of other criminal defense lawyers, I couldn’t get over the case and enjoy myself. Other attorneys told me it was a great offer given his exposure and the facts of the case. It’s supposedly far less time than was offered to other defendants swept up in the same series of DEA undercover operations. Still, I’m upset.

A decade in a cage for drugs. Think about it. My client was a high school football star. He went to college. His son will be in high school when he gets out. His poor child will have spent his formative years without a dad.

The judge’s speech at settlement includes a part about how no defendant ever sees himself being at the defense table when he’s a kid. I got choked up thinking about my client’s life. I remembered mitigation I read in his oldest cases. Back then, his lawyers wrote how he had a bright future ahead of him, how someday he would be a good father, a coach, and maybe a teacher. It is unclear whether his future can ever hold those things. I hope more than anything that it does.

The judge’s speech also focuses heavily on the risk of trial. When he asked my client if he’d ever been to trial, my client shook his head. Suddenly, I felt terrible. Six felonies and not a single trial? My client had spent most of his adult life behind bars, and he’s not once gone down swinging? I wanted to stand up and pound the table. I wanted to reject all offers and continue fighting the state for him, all the way to the bitter end. Now, I am ashamed I felt that way. He would have ended up serving a life sentence for my arrogance.

I wrote in my last post that you can only really complain about the outcome of something if you didn’t participate in the flawed system that let it happen. I now think I was wrong on that point, but that’s not my reason for bringing it up. A regular commenter on this blog wrote in response that, by that logic, “because your posts show that you think the criminal justice system, in which you are a participant, is flawed, you cannot complain about the system.” Is he right? Is that why my client’s sentence upsets me so much?

I set the case for settlement confident I could get a better offer that way, but also knowing my client was likely to plead under pressure from the judge in the event we got a great offer. I participated in a system that’s making a little boy grow up without a dad. A bright, funny, talented man is going back to prison. His dreams are on a ten-year hiatus. This is the drug war, and I’m a part of it. I minimized its damage as to one person, but he’s sitting in a cage because an undercover drug cop called him up and offered him $60.00 for a tiny little bag full of C17H21NO4. I’m disgusted with myself for participating. Worst of all, I worry I may not even have the right to complain.

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Posted in Clients, Government Rants | 6 Comments »

To Plead or Not to Plead?

Saturday, July 10th, 2010

In Arizona, mentally ill defendants tend go down one of two different paths. Neither path is very appealing, as the system simply isn’t equipped to deal with people suffering from serious mental illness.

The first path involves Arizona’s defense of “guilty except insane.” I have never practiced in another state, but I can’t imagine a tougher, more restrictive approach to dealing with defendants whose actions were a result of their mental illness.

To get a finding of guilty except insane, the defendant’s problem must be “severe” and prevent him from discerning right from wrong. We aren’t talking about your normal severe mental illness either. Anything that’s momentary, temporary, or arising from the pressure of the circumstances doesn’t count. Neither does moral decadence, depravity, or passion growing out of anger, jealousy, revenge, hatred or any other motives that may be present in a person who does not suffer from a mental disease or defect. Nothing resulting from acute voluntary intoxication or withdrawal from drugs or alcohol, character defects, psychosexual disorders, or impulse control disorders is going to fly.

Assuming he or she has a qualifying mental disease, a defendant must prove his insanity by “clear and convincing evidence” On top of that, if a defendant is found guilty except insane, he or she will most likely be sentenced to a presumptive prison term anyway, though he or she will serve it in a state mental health hospital instead of in the department of corrections .

There’s very little reason for a mentally ill defendant to use a guilty except insane “defense” in Arizona, as the best case scenario could result in a term of commitment greater than what the person might have served had he or she simply pled guilty to all charges. Sadly, the other path Arizona’s mentally ill defendant’s can take is not much better.

The second path involves determining whether a mentally ill defendant is fit to stand trial. Like with a guilty except insane finding, although I have never practiced in another state, I can’t imagine a tougher, more restrictive approach to dealing with incompetent defendants.

Rule 11 of our rules of criminal procedure covers competency to stand trial, so lawyers usually refer to competency proceedings using the name of the rule. If I have concerns about the competence of a client, I simply request a Rule 11 evaluation. The issue is going to boil down to whether the defendant is able to understand the nature of the prosecution and assist in preparing his or her defense.

The most superficial, childlike statements often satisfy Arizona’s standards. When asked about the rolls of defense counsel, prosecutor and judge, one of my clients said “the prosecutor puts me in jail, Matt gets me out of jail, and the judge wears a robe.” Totally competent, according to the court.

If a defendant is found competent, the time they spent getting evaluated is waived. That means they can be forced to wait longer for trial, even if they are in custody, because their lawyer requested an evaluation.

If someone is found incompetent, they aren’t released. In some instances, the state agrees to drop the charges, but that isn’t the norm. Typically, the next step is based on the likelihood of restoration, as the court must also decide if the defendant is restorable to competence within the statutory period. If they aren’t, the state will usually file for civil commitment. If they are, they get to participate in a restoration program. When they’re done with the program, which can last a while, they get sent right back to the trial court level, where adjudication resumes.

As you can probably see, Arizona’s system is a trap for the mentally ill. If they’re in custody, they almost always stay in custody much longer than they would if they did not have mental health problems. There is rarely any real benefit for someone who is mentally ill to proceed with competency proceedings or try to obtain a verdict of guilty except insane.

I’ve had a few cases where the previous lawyer had filed a Rule 11 evaluation for an in-custody client, and the matter was set for review of competency. When I got the file, I saw that the person had a plea offer to probation with no additional jail and was in on a bond of a few hundred dollars, which they couldn’t post because they were homeless and mentally ill. The reports came back saying incompetent but restorable, so the client had to hang around jail for months to get restored and kicked right back to the trial court, where they may or may not have still had the probation offer they could have accepted months earlier if they weren’t mentally ill.

It doesn’t seem right filing a rule 11 motion knowing that in all likelihood the client might spend half a year in jail just to get right back to the point in the case where they were the day you filed for the competency evaluation. Unsurprisingly, most mentally ill clients won’t appreciate it when you tell them they should be happy because they were previously incompetent and you’ve protected their rights by making sure they spent lots of time in jail getting restored.

It’s not right to plead out an incompetent client either. The reality is that, when pleading means getting out and competency means staying in, they all want to plead.

Great system, eh?

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Posted in Clients, Procedural Rules | No Comments »

No Warm Fuzzies Here

Thursday, June 24th, 2010

The work of a criminal defense lawyer is often thankless.  You can put your heart and soul into something, and at the end of the day, you may be the only human being on earth who knows what good you’ve done, what difference you’ve made. When it looks like you’ve messed up, however, it rarely escapes notice. You’ll get caught. You’ll get called on it whether it’s your fault or not. I got to experience some of the thankless nature of the job yesterday morning.

My first hearing was a change of plea. The client is already serving a prison sentence, and he has a couple of years left to go. There’s a decent constitutional issue, so I convinced the prosecutor to make him an offer to concurrent time. He’s already maxed out on felonies, so another conviction won’t enhance his sentencing range in the future. For all practical purposes, the plea is as good as a dismissal or a not guilty verdict at trial.

My only way of discussing a plea offer with a client in prison is by setting up a legal visit or legal call through the client’s “CO3,” a corrections officer assigned to him. In his case, I tried numerous times to set something up through his CO3. At first, I couldn’t get in touch with her. Then, she set up a meeting for a time she wasn’t there and forgot to tell her replacement about the visit. My file is full of entries where I tried to get in touch with her. It took forever to finally set something up.

When I spoke with my client and confirmed that he wanted the plea, it was too late to file a motion to get him transported. My prisoner clients generally hate being pulled away from their daily routine to be hauled to jail and then to court, and it’s a waste of the county’s time and money to file a motion for transport and get an order, make the sheriff go across the state to get someone, haul them back, and house them for a hearing where nothing happens. As a general rule, I don’t automatically file for transport. By the time I knew I should in that client’s case, there wasn’t enough time for the sheriff to actually carry out the order.

When I called the case in court yesterday, I had no clue that, as I had been doing my best to contact my client, he had gotten upset and written the judge a letter saying I wasn’t doing anything on his case. He complained that I didn’t care about him.

On the record, the judge told me about the letter then showed it to me. It was the first I heard of it. Suddenly, I understood why the client seemed embarrassed when I finally talked with him and explained what I had done. As of yesterday’s hearing, the client was exceedingly happy with the representation. Unfortunately, no one else in court knew that. No one knew I’d actually done my job.

In my second hearing, I had filed a motion for transport for a client. That client was being held in a different county’s jail. Although everyone told me a transport order wasn’t necessary for that type of transport, I filed it anyway because the sheriff failed to transport him to the last several hearings. Getting my client to court had been an absolute ordeal every time.

The client wanted to enter a plea, but he was initially set for a hearing on Monday in front of a judge who wouldn’t hear pleas. I filed a motion to vacate the Monday hearing and set the matter for a change of plea yesterday in front of a judge who would actually hear it. The clerk and the judges’ assistants both told me my client would be transported on Wednesday and that the judge would just vacate the Monday hearing.

When I got to the hearing yesterday, I found out that the sheriff had miraculously transported my client for Monday’s hearing then brought him back to the other county’s jail. Despite the signed transport order issued by the court, they brought my client to the wrong hearing, the one that should have been vacated. To make matters worse, someone left the motion to vacate, which supposedly had been granted, out of the court file. With the client there, me gone, and nothing in the file, the judge on Monday apparently got upset with me on the record. The minute entry from Monday ordered me personally to appear on a future date.

No one thought to tell me what had happened, so I didn’t find out about any of this until the last minute. I walked into the courthouse yesterday thinking everything was going to proceed smoothly. I’d done everything that could’ve been expected of me, everything I could have done. Anyone else, however, would look at the situations and assume I’d somehow made mistakes. Luckily, I didn’t have any other hearings that could go wrong.

Instead, I next went to visit a client. We previously had a change of release hearing, and the judge took my motion under advisement. After my irritating morning hearings, I found out the judge had issued an order reducing my client’s bond from the price of a house to the price of a motorcycle. The judge even modified his conditions to let him travel out of state for work. I walked over to the jail looking forward to being the bearer of good news.

Sadly, I didn’t get so much as a thank you. I probably would’ve gotten a happier reaction from the client had I told him it was taco salad day at the jail. He’s probably bonded out by now, but I doubt he’s even considered that I might have helped him out. Do something bad, or even something that looks bad, and you get hammered. Do some good, and you get nothing.

Strangely, I’m not bitter about yesterday. Maybe it seems like I’m complaining by talking about my morning, but that isn’t my intention. Yesterday wasn’t atypical. It looks like it won’t even be my most thankless day this week. I’m moved to write about it not because I need to whine, but because some other superficially unrelated things made me think about it in a different light.

I recently hired some clerks who are either new lawyers or law school graduates pending bar passage. Some of them request input after sending me their work. I can’t blame them, as I would probably feel the same way in their situation. I send them my finished product, the pleadings and other substantial documents based in part on their work, but they also seem to want critique. I get the feeling they want compliments mostly. They appear to want me to tell them they did a good job, not just what they should improve. I keep wondering if I ever felt the same way. I’m sure I did. How much did I seek positive feedback a few years ago? How hurt would I have been then if I had to experience a day like yesterday?

In this job, I often feel like I’m the only person who knows exactly what I’ve done. I bet I often am, and I think it’s the same for most criminals defense lawyers. As a result, I think most of us learn to derive satisfaction not from other people appreciating our work, but from knowing we did our best. It’s the best and maybe the only way to be happy and feel a sense of accomplishment in a profession where your defeats feel public and your victories feel private.

I compliment my clerks in the areas where they deserve it, but it feels strange. It feels like something that doesn’t match the nature of the profession. Am I coddling? Why should I give them something they will likely never get when they handle their own caseload? Am I giving them unrealistic expectations about how the practice of law is going to be?

The nature of the profession doesn’t seem to change much when lawyers go online.  Blogging lawyers, the ones I read at least, tend to call each other out a lot more than they pat each other on the back.  Like Mark Bennett said yesterday, “This is Not the Happysphere.” Scott Greenfield agreed. Norm Pattis might agree too, but he doesn’t seem to like it.

The online debate among lawyers can be fierce. It’s a stark contrast to me diplomatically telling someone I’m paying what I liked about their memo. Plenty of blogging lawyers rip each other to shreds for even the tiniest little tidbits of stupidity. Like in the profession itself, the defeats, not the victories, tend to dominate a lawyer’s online presence. A hundred thought-provoking posts might not get half the traffic of one badly-thought-out one. I don’t know if that’s a good thing or a bad thing. It certainly helps to prepare online lawyers for the thankless, critical environment of the legal profession.

All of this led me to think about a friend who recently got a cushy job playing with a symphony orchestra. He mentioned to me how different it felt going from the music school environment, where every concert is followed by celebration where beer and compliments flow freely, to the professional environment, where you sometimes have to quietly drive home after a concert without hearing so much as a “nice job!” The disconnect is even more notable between law school and the legal profession.

I saw more people desperately seeking validation in law school than I’ve ever seen in my life. Hands flew up in the air to answer questions first, each student making sure his or her answer showed the professor his or her stupendous intellect. People made the most ridiculous self-serving statements I’ve ever heard. For the most part, if a student fished long enough for a compliment, he or she would get one.

I have no clue whether the constant desire for input I saw in my classmates, the same thing I see in some of the people I hire, is a generational thing or not. I also have no clue whether it’s good or bad to give people the affirmation they seek. What I do know, however, is that those aren’t desires that are going to be satisfied easily in the world of criminal defense, whether online or in practice.

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Posted in Clients, Courts, Practice in General | 5 Comments »

Marketing to Bikers

Tuesday, June 8th, 2010

I follow Susan Carter Liebel on Twitter. She’s the creator of Solo Practice University, a website that’s supposed to be “the #1 web-based educational and professional networking community for solo lawyers and law students.”

Yesterday, I noticed she put up the following with a link: “Adam Gee teaches you How To Market To Bikers in his newest class.” Intrigued, I clicked the link. I couldn’t find anything about the content of the course though, so I went to Adam Gee’s page at SPU. There, I saw the following under his syllabus:

Marketing to Bikers: Developing a Motorcycle Practice
* Indirect Marketing Techniques
* Direct Marketing Techniques
* Blogs, social media and books

I think SPU is a great idea, and Adam Gee may be a hell of a lawyer. For all I know, he may even have some serious biker cred. However, what Susan Carter Liebel wrote, along with that little portion of the syllabus on Adam Gee’s page, worried me a little bit.

I’m a biker. I ride ten to twenty thousand miles each year, and I’m very active in a variety of bikers’ groups. I volunteered for MROs and went to swap meets before I started law school. Brown & Little, P.L.C., wasn’t even a twinkle in my eye. My friends are bikers, so I often get to see lawyer advertising not from the perspective of another lawyer, but from the perspective of the target demographic. It isn’t pretty.

Lawyers saturate the biker market. Most lawyer advertising aimed at bikers is not well done. I cringe every time I see a pamphlet showing a couple of guys with neatly-trimmed goatees wearing neatly-pressed leathers as they lean on their spotless, stock Softails. Do they really think they can just add some flames and an angry eagle to their ad and they’ll be ready to take the motorcycle community by storm? Never mind, I know the answer.

Lawyers also start special wings of their firms claiming to offer bikers free breakdown assistance or legal advice regarding discrimination. They give out special cards for bikers to carry in their wallets in case something happens. When there’s discrimination or a stranded biker, you can usually hear the crickets chirping on the phone line. When a biker gets seriously injured by another motorist, however, the lawyers pounce. Good thing the biker joined their card-club; those pesky ethics rules about solicitation are normally a drag. Do lawyers actually think bikers can’t tell the difference between a gimmick and someone who genuinely wants to help? Never mind, I know the answer.

Attorneys finagle their way into every event bikers attend and every product bikers buy. They’re like vultures. They see the promise of riches and throw money at bikers, but most bikers see through their crappy advertising. Bikers know who the outsiders are, and they generally aren’t swayed by a back page ad. Weekend warriors and people who aren’t in a club or an MRO may not notice the lack of authenticity, so the poser biker’s lawyer will probably find himself sitting across a desk from a poser biker in an initial consultation, each pretending they’re the genuine article. I guess that’s okay, but it’s too bad lawyers have to insult the intelligence of a group of good people with ridiculous advertising in order to find a playmate for a session of biker make-believe.

Whether you believe me or not, I’m not complaining about this because bikers are my market. Sure, my firm does market to bikers, but it’s mostly just to the extent necessary to help good causes that need sponsors. We also do get clients from our involvement, but there’s one big difference between that and the way most lawyers market to groups like bikers.

I get biker clients the way I get clients from my family and friends. It isn’t based on some slick ad or some sham club I’ve convinced people to join. When a friend who happens to be a biker knows someone in need of a criminal defense lawyer, they refer that person to me because they know and trust me. Lawyer advertising in the biker market doesn’t take away my slice of the biker pie any more than another lawyer advertising in my mom’s Christmas letter would convince my brother to send a DUI referral elsewhere.

Lawyers study their markets as if the people who compose them are animals. They infiltrate organizations to take their targets’ hard-earned money. Their goal, because of the very nature what they’re doing, is to take more than they give. They aren’t in it to make friends or help a cause at all. And we wonder why we’re hated?

I understand that’s how marketing in general may work for a lot of lawyers, but I wish we had a little more self-respect. This is supposed to be a profession, isn’t it? Lawyers can get some of the low-hanging fruit by exploiting a group of people, but that doesn’t mean they should. It’s embarrassing. Are attorneys so greedy, stupid, and helpless that they need to pay someone else to study insular groups of people and teach them how to make friends with and influence those people? Never mind, I know the answer.

I hope SPU isn’t wasting its time sending freshly-minted solos into meetings to peddle their new biker helpline or hand out pamphlets with lots of flames and skulls, but I honestly have no idea what SPU intends to teach about bikers. If it’s something to make lawyers more effective at handling motorcycle-related cases, more power to SPU. If it’s a superficial study of what most bikers like (hint: a good time, and boobs) and don’t like (hint: authority) intended to show money-grubbing lawyers how to make friends and persuade bikers to hire them, I’ll be disappointed. Please, SPU. Do it right. The biker world doesn’t need any more law firms with mascots.

The only consolation for me in all of this is the fact that attorneys, probably far more so than bikers, are studied as a group and targeted by marketers. What I view as exploitation by us may be more likely to end up being exploitation of us. Most biker marketing isn’t going to send a single biker to a shady lawyer hoping to score a quick buck from a new group of suckers, but the same doesn’t seem to be true of marketing to lawyers. Lawyers looking to exploit bikers are probably going to find themselves getting a dose of their own medicine, medicine that actually seems to work on them. Attorneys will buy anything. That must be why many lawyers think they can get clients with half-baked ideas.

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Posted in Bikers' Rights, Clients, Marketing, lawyers | 15 Comments »

Losing at Trial

Sunday, April 18th, 2010

Last week, a jury found my client guilty of three counts of dangerous crimes against children. I sat next to him in court as the clerk read the verdict, and he broke down before the clerk made it through the second count. He knew he would spend the rest of his life in prison.

This isn’t the first trial I’ve lost. It pains me to say it, but it’s also unlikely to be the last. No matter how hard I try, I’ll probably again have to experience the feeling of knowing someone trusted me with their life and made a gamble that didn’t pay off. It’s a twisting, sinking, hopeless malaise that consumes you. You’re in a nightmare. You know you can wake up, but the person who trusted you can’t. Someone had faith in you. You did your absolute best, and it wasn’t good enough.

The word “guilty” overflowed with significance. My client testified, so “guilty” meant the jurors did not believe him. Twelve people must have unanimously agreed he was lying when he looked them in the eyes and said he did not do the charged acts. “Guilty” meant that my client would never again go for a hike, drink a beer, or even order a meal from a menu.

My client sat next to me crying, and I was incapable of comforting him. I had nothing to offer. There will be a motion for a new trial. He’ll have appeals. From now on, however, the deck is even more stacked against him. This was his best chance to fight for his freedom. I can’t tell him everything is okay because everything is not okay. He heard a word that signified the end of life as he’s known it since the day he was born. I can’t dull the pain or fear for him.

Strange memories of my client popped into my head. I thought about when I visited him the day before Thanksgiving and he said to me, “I hope you have a great turkey day, Matt.” I thought about one witness describing him as being obsessed with Xbox and football. I thought about how on a weekday roughly one year ago he went to the auto parts warehouse where he’d worked for years and began a day just like any other. Instead of working a full day and going home, though, he was arrested before his shift ended and held without bond. He couldn’t have known it at the time, but that was his last day of freedom. He will die in prison.

I know the terrible feeling in my gut will go away eventually. At some point, it will probably be entirely replaced by a desire to make sure this never happens again.

When the jury left to deliberate, I felt good about how the trial went. Now, I agonize over every little thing I could have done better. Details of trial that would’ve escaped my memory forever had I won now pop into my head one after another. After losing, I get the overwhelming feeling that every case can be won with the right defense.

This was a tough case. The state had two recorded confessions from my client, but he insisted he was innocent. Two attorneys before me had heavily pressured him to take the plea. He went through with two settlement conferences, never once even considering the offers the state put on the table. Should I have pressured him more? Would it have made any difference? If I had done something different, could I have won the trial?

The guilty verdict was followed by the aggravation phase. As my client sat there weeping, I felt callous getting back to work. It was work on his behalf, but it didn’t matter. A life sentence is a life sentence. What middle-aged man cares if it’s seventy years or eighty? Aggravation took away an important time for him to come to terms with what was happening. It thrust him back in front of twelve people who just judged him, twelve people who without knowing took away everything he ever knew.

Criminal defense is not an easy job, and it’s never tougher than when you’ve just lost a trial. The only benefit is that a loss leads to reflection. It’s no consolation for my client, but I am never more acutely aware of the lives of the people I represent or the importance of what I’m doing. A loss does more to make me a better lawyer than any win could ever hope to do.

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Posted in Clients, Practice in General, Trial | 4 Comments »

Trial Reflections

Saturday, January 9th, 2010

I spent last week in trial. My client was charged with one count of aggravated assault. If he had been convicted and the state proved his priors and its allegation that he was on probation, he faced ten to fifteen years. The theory of the state’s case was that my client kicked his live-in girlfriend in the face five or six times, causing her “temporary but substantial disfigurement.” The jury acquitted my client after a four-day trial and an hour of deliberation. Like any trial, it was an interesting experience. A few things stood out though.

I only had the case for about ninety days, and I was the client’s fifth or sixth lawyer, depending on whether you count his third (and last) public defender. I know his first two public defenders pretty well, and I could tell from the file that they really worked his case. They are great lawyers, and he was lucky to have them. Unfortunately, he didn’t agree. He filed some documents with the court saying not-so-nice things about the public defender’s office and his first lawyer in particular.

My client’s friend only brought him one shirt for trial, and I didn’t find that out until the second day of trial. My office is an hour from court. My house is even farther. Knowing the public defender had trial clothes for defendants, I asked if I could borrow a shirt. Maybe I shouldn’t have asked, but I did. I’ve had appointed clients complain about me being a “public pretender” in letters and pro per pleadings, and I’ve never taken it personally. People tend to undervalue what they don’t pay for themselves. I’d have given any of them a shirt. Not doing that just inconveniences their next attorney.

Well, the public defender felt differently. The receptionist was okay with me perusing their wardrobe, but the public defender herself came up and asked me who was going to get the clothes. Not just a public defender, but the public defender, the county official in charge of the office. She told me she would not let my client wear one of her office’s shirts because he “dissed” one of her lawyers. I got to spend a morning recess shopping for my client.

I’d consider the public defender who got the brunt of my client’s ire a friend. We’ve even discussed the case over beers. He later told me he would have gotten me a shirt if I’d asked him. Does anyone think I was wrong asking his office for a shirt? Does anyone think the public defender was right refusing to give me one?

Another thing that stood out was my conversation with jurors after trial. Win or lose, I haven’t had much luck with jurors wanting to talk after trial. These jurors were different, and what they told me increased my faith in juries.

All of the jurors said the case came down to reasonable doubt. They doubted the victim’s story, they doubted the physical evidence in the case, and they doubted the police investigation. It made me feel good that they actually thought about the burden of proof and the fact the state had to prove my client guilty beyond a reasonable doubt. After a 2009 with nonsensical and even internally inconsistent verdicts for and against me, it made me happy to hear from smart jurors who clearly took their duties seriously.

Finally, the trial made me think about risk tolerance. On the first day of trial, the prosecutor offered my client a plea to time served. My client could have walked out of jail that day, but he rejected the offer. He spent three extra days in custody during trial and risked spending a decade or more in prison. The gamble paid off for him in the end, but it wasn’t always clear it would. The victim recanted prior to trial, but she eventually recanted her recantation. Over a plethora of objections, the prosecutor even admitted into evidence a letter from my client telling her what to say. Some of the time, my case looked downright ugly.

I can honestly say I would have taken the plea. Innocent or not, I would’ve done it. No doubt about it. I don’t mind risk, but in my client’s situation, it would’ve been too much. I firmly believe there is no such thing as a guaranteed winner at trial. Should I trust the system more? Would any of you have done what my client did?

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Posted in Clients, Trial, lawyers, public defenders | 7 Comments »

The Double-Call

Saturday, December 19th, 2009

Sometimes one call isn’t enough. That’s what a number of my clients seem to think, at least. My phone will ring, but I either miss it or can’t pick up because I’m busy. Sure enough, the same number will call again after having not left a message moments before. It’s the dreaded “double-call,” a phenomenon every attorney encounters at some point. It isn’t just clients that do it either. Other attorneys, police officers, and legal assistants do it too.

Admittedly, the tactic can be helpful. If I miss the first call because I’m a little too slow picking up and the number shows up as unknown, it’s nice to have a second chance. The tactic is less helpful when I’m not picking up because I’m in the middle of something more pressing. That’s frequently the case.

Most missed double-calls don’t result in a message, which is highly irritating. If it’s worth calling me twice, it’s worth leaving a message. If you’re calling about one of my cases, I really care about what you have to say. It’s extremely important to me, and having two missed calls from an unknown number with no voicemail is a waste of everybody’s time. I’ll rarely be irritated by a double-call if there’s a voicemail for me after the second one.

I recently had a series of telephonic interviews take up an entire afternoon. The first telephonic interview ended up turning into double-call hell. I had just moved into a new office with a new phone system that included additional phone lines. I didn’t use the do-not-disturb button because, quite frankly, I had no idea what “DND” stood for. I regretted not learning its meaning earlier.

The subject of the first telephonic interview called my cell phone. I put him on speakerphone and began the interview. Immediately, I got a double-call on my cell phone from an unknown number with no message. Undeterred, the double-caller then contacted the receptionist and requested to be transferred to my cell phone. The next double-call showed up as an unknown number being forwarded by the receptionist. No voicemail. Next, my direct office line got double-called from an unknown number with no message. The caller then did the same receptionist-forwarded double-call trick he did with my cell phone. Still no message.

As if he or she was playing some kind of joke on me, the direct line in Adrian’s office rang four times. In pairs, of course. No voicemail. Then the main office number rang four times, again in pairs. No voicemail, just missed unknown calls in sets, first straight from an unknown number then from an unknown number forwarded from the receptionist. I love the receptionists and am fairly confident the double-caller was engaging in some serious trickery to get that many calls through without anyone taking down his or her information.

In the end, the double-caller double-called me eight times, resulting in a total of sixteen calls before I could finish that first telephonic interview. He or she never left a message. Not once.

Part of me worries that I missed something important. Could it have been more important than an interview with a key witness in a serious felony case? Why didn’t the caller leave a message? I still have no clue who was calling.

If you were the one double-calling me over and over, please don’t do that again. If you can leave me a message, do it. It will be returned quickly. I guarantee. I can also guarantee that if the first double-call doesn’t get the desired result and you can’t leave a message, you should wait a little while before you try a second time. Double-calling every phone line within earshot of my office one after another will only succeed in pissing me off.

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Posted in Clients | 4 Comments »

No Constitutional Crisis Here

Wednesday, December 2nd, 2009

Maricopa County Sheriff’s Deputy Adam Stoddard violated a defendant’s constitutional rights, Superior Court Judge Gary Donahoe held him in contempt, and Stoddard is now in jail after refusing to follow the judge’s order and apologize. The way I see it, the loser here isn’t Stoddard or his boss, the ever-defiant Sheriff Joe.

I think Stoddard ends up looking good to most people. Even I’m a little impressed with the guy. He did his job, refused to apologize for doing what he was trained to do, then took one for the team and followed the judge’s order. I tend to have serious problems with blindly following authority, but I can definitely appreciate how far Stoddard is willing to go to do what he perceives to be his duty. If this mess had been caused by him standing up for rights, not against rights, I’d probably admire him. I was at the press conference where he refused to apologize, and although I doubt he actually wrote the statement he read, he seemed sincere. He may be doing his time in the “Mesa Hilton,” but he almost comes off as being the victim in all of this.

Sheriff Joe also ends up looking pretty good. We’ll never know, but I think Stoddard never would’ve been jailed if he hadn’t gone in on his own. I think the sheriff would’ve been happy letting Stoddard go to work at the superior court, knowing he had been ordered to do jail time. Sheriff Joe appears to have stood behind his man, and he let the courts know he doesn’t feel obligated to obey their orders. His defiance also makes quite the one-two punch when taken in conjunction with the fact he and his buddy, County Attorney Andrew Thomas, just slapped Judge Donahoe and everyone else who ever looked at him funny with a federal racketeering lawsuit. Read more about that here.

When this started, Stoddard and Sheriff Joe probably seemed like the bad guys to most people. They were the bad guys; Stoddard violated a criminal defendant’s fundamental rights in a blatant and outrageous manner, and it clearly wasn’t an accident. Does anyone doubt that important people in the office played a major part in what Stoddard did? Is anyone doubting that what Stoddard did was wrong? Considering that, how did the sheriff and his man go from bad guy to good guy?

There’s a lot of blame to spread around. Judge Donahoe should have held Stoddard in direct criminal contempt instead of indirect civil contempt. Punishing Stoddard and not the sheriff’s office was an even worse idea, as it gave the sheriff the ability to talk the talk while leaving the tough stuff to Stoddard. I stand by my first suggestion: holding the sheriff’s office itself in direct criminal contempt and punishing it with a huge fine would’ve been the smartest thing to do. Order that the fine be paid to the court and be set aside to put on court-sponsored training for sheriff’s deputies on the meaning of the Bill of Rights. Publicly making Stoddard into the obedient soldier and Sheriff Joe into the tough commander isn’t the way to teach either of them a lesson.

Contempt proceedings aside, dismissing the case against Antonio Lozano would have sent the clearest message to overzealous officers in the future. In fact, if Lozano’s case isn’t dismissed, I may lose a little bit of respect for the judiciary. Ordering an apology is a cute way of dealing with a violation of a criminal defendant’s less popular constitutional rights, but it isn’t sufficient. I bet plenty of courts would love to replace the exclusionary rule with a policy of forcing apologies from rights-violating officers, but they haven’t. If the court didn’t believe Lozano’s rights were violated, it wouldn’t have held Stoddard in contempt. Courts always say they value the right to counsel very highly. This would give one court a great opportunity to put its money where its mouth is. Dismiss the case against Lozano.

The fact Lozano seems to have fallen by the wayside may be one of the real tragedies here. How did Joanne Cuccia’s reputation suddenly become the victim? That file is not really hers, it’s Lozano’s. It was his name in the caption, not hers. If copying those documents hurt his defense, he’d be the one bearing the brunt of it. I keep hearing that the sheriff’s office issued a press release lumping Cuccia together with Jason Keller and David DeCosta, but I haven’t seen it. If true, that’s outrageous. However, it’s nothing compared to the potential effect of Stoddard’s actions on Lozano. A lawyer’s reputation and a defendant’s freedom carry vastly different weight in my book. Given what Lozano may have had at stake, why is he playing second fiddle to his lawyer in all of this?

We’ve probably got a long way to go before this is over. Personally, I’m awfully curious about how long Stoddard is going to have to spend in jail before something happens. I keep checking the website for the Court of Appeals, Division One, but I haven’t seen a special action come up in this case. Why is the county attorney waiting? Perhaps more importantly, why is a county attorney still representing Stoddard in the first place? At Stoddard’s press conference, deputy county attorney Tom Liddy was very clear about the fact he represented Stoddard, not the sheriff. How does that work? I can see plenty of potential conflicts of interest just reading the various news stories on this. Did Stoddard sign a waiver of conflict?

Sooner or later, Stoddard’s now-indirect, now-civil contempt (his refusal to follow a court’s coercive order outside the presence of the court), is going to become criminal contempt (punishment). How long will that take? Will appellate review happen first? I’m a little tired of living in a county that also serves as a punchline, but this whole thing sure makes for interesting news. I guess I don’t mind waiting a little bit longer.

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Posted in Clients, Courts, Government Rants | 7 Comments »

Inequality

Tuesday, October 27th, 2009

Criminal defendants, especially ones who are in custody and hope to enter a plea, love comparing their cases with other criminal defendants’ cases. “My cellmate was facing the same charges and got a deal to probation. Why is my deal to prison time?” In most instances, they’re comparing apples to oranges. His cellmate didn’t have any priors and didn’t commit the offense while on probation.

Of course, that’s not always the case. The disparity in treatment may be real, and the two defendants may be similarly situated.

Differences could be caused by an ineffective defense attorney. The defendant may have a lazy public defender who sees no point in trying to get a better offer. He may have an appointed attorney who gets paid extra for trial and has no incentive to get a better plea. He may have hired a bargain basement private lawyer who considers it his job to make every client feel good about taking the first crappy plea the state throws their way.

The cause for disparity could also be the assigned prosecutor. We are so concerned about making sure people aren’t treated differently that we’ve created a system where everyone who chooses to go to trial gets royally screwed if they lose. We’ve made things equally bad for everybody in that situation. What we haven’t done, however, is eliminate plea-bargaining.

As I’ve discussed before, you have no right to a plea. I deal with some great prosecutors almost every day, but I also deal with some terrible prosecutors. The worst prosecutors make ridiculous offers. They don’t know the facts of the cases they’re prosecuting, and they don’t care. As long as prosecutors can offer plea bargains to lesser charges or dismiss counts, people are going to be treated differently. The assigned prosecutor can be the major factor in what happens to a criminal defendant.

Rigid plea-bargaining guidelines do nothing to promote equality. They just shift the initial burden to the defense attorney. The prosecutor will make the same offer he or she always makes, then it’s up to the defendant’s lawyer to try to fix it if it’s wrong. A defendant with a good lawyer is more likely to get a fair offer. A defendant with a terrible lawyer may have no chance. The buck still stops with some prosecutor who has discretion about the prison term or whether to offer the defendant probation.

I’ve had many clients charged with even the highest level felonies plead to misdemeanors with no jail. I’ve convinced many prosecutors to dismiss cases based on weak evidence. Sadly, I’ve also had clients charged with stupid low-level felonies based on minimal evidence grudgingly go to trial because the prosecutor wouldn’t make a reasonable offer.

The system doesn’t treat everyone equally. When the specific circumstances of a case, like the assigned prosecutor, cause a defendant to be treated differently from others similarly situated, it’s unfair. It’s also a reality we can’t do much to change.

When I was a kid, I always got the same response from my parents when I complained about something being unfair. “Life isn’t fair,” they would say. When people complained about his class, one of my high school teachers used to say in an unbelievably thick west-Kentucky accent, “there are three fairs in the world; the county fair, the state fair and the world’s fair. You ain’t at any of them.”

They’re probably right. The system isn’t going to be fair. Some people are lucky. We can try to treat everyone equally, but our system will never be perfect. Most of the time, our best efforts will only make things worse. We will only succeed in achieving equal unfairness for most.

The system is run by humans. Those humans have a job to do. Many of them have very specific ethical obligations. Some of them will take their jobs and ethical obligations more seriously than others. Because of that, some defendants will see the cases against them dismissed, while others will have to go to trial or take an unappealing plea bargain.

Unless we take discretion away from prosecutors entirely and remove their obligation to only pursue good faith claims, people are going to be treated differently. The only way to really make things equal is to remove the few remaining safeguards that prevent unfairness.

Do we really want that?

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Posted in Clients, Prosecutors | No Comments »

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