Madison police protests

This past weekend a 19 year-old african-american kid named Tony Robinson was killed by a police officer in my home city of Madison, Wisconsin.  It happened about two blocks from my house in fact, and Sunday evening I could hear the thrum of protesters outside my home.  Here is my issue of the day:  I’m tired of hearing people say “Just wait until all the facts are in before we _______ [draw conclusions][protest][make judgments].”

Sure, on its face this sounds like cool-headed rational advice.  The voice of reason.  It’s not.  If the people saying this were honest, they’d admit it’s a veiled message.  Oh perhaps there are some who are genuinely abhorrent of strife within the community, but I suspect most just don’t want to hear/see any protest or criticism of police AT ALL.

First off, protests in this situation are not premature or a rush to judgment.  Certain undisputed “facts” are already out.  Whatever the kid may have done to provoke the police contact, he was unarmed.  No knife, no stick.  Yet lethal force was used.  No matter what “facts” could conceivably emerge later on– people can be pretty justifiably hot about this right now based on that information alone.  Are they really supposed to wait six months until some outside investigative agency’s report is released (which will probably exonerate their fellow police agency anyway), and protest then?

Irrespective of whether I myself agree with (or would join) in any particular protest, I have a problem with those who criticize people for protesting.  It smells to me of stifling dissent at best, and enabling/collaborating with authority and the status quo at its worst.  History rarely looks kindly on people who took such positions during turbulent times.  So… as long as that crowd of protesters isn’t hurting you, stfu.  Let them protest.

Finally, this is as good a place as any to add a little note on an issue I’ve been noticing with some fascination over the past year:  that is the speed and zeal with which many people rush to defend law enforcement whenever they come under fire.  Why are some so uncomfortable with the idea of law enforcement criticism?  What is it that they fear?  I’m continually astounded by it.  It is as though they would have law enforcement be above reproach.  Phrases like “they have such hard jobs” and references to the incredible “dangers” to which they are subjected (and because of which they presumably must be given greater latitude) are bandied about ruthlessly in their defense.

With all due respect to my police friends, it’s BS.  Most of us have hard jobs.  In fact, most people have harder jobs than cops do.  Or at least jobs that don’t involve sitting in a heated/air-conditioned car for days on end.  Also, the public’s perception of the “dangerousness” of being a cop is vastly overblown.  On a fatalities-per-100,000 basis urban police officer (not even factoring in all the Mayberry cops) doesn’t even crack the top ten list of America’s most dangerous jobs.  Construction, farming, fishing, flying planes, and garbage collecting are all significantly more hazardous occupations.  Police deaths, though more rare, are more sensational only by virtue of the fact that they are more often not accidents.  The media attention on every such fatality is what probably gives the public such a skewed perception of how “dangerous” police work is.  When a cop dies we hear about it.  When a farmer, miner, or garbage collector dies– we don’t.

There is no good reason police should be immune from accountability.  They are subject to all of the shortcomings, failings, and prejudices that the rest of us are.  Many trades and professions are subject to oversight through licensing authorities.  Doctors and lawyers face additional scrutiny in the form of malpractice suits.  As much as that system itself is criticized, it probably does have the effect of identifying and weeding out some of the bad doctors and lawyers.  Police are rarely subjected to any level of public oversight.  Certainly not lawsuits, as police agencies enjoy something called “sovereign immunity”, whereby they cannot be sued (at least for the most part).  Therefore, a little protesting… fine by me.

Laws named after people

I’m not often in the habit of quoting prosecutors.  It isn’t that they’re aren’t quotable, or often intelligent sorts.  But rather I think it’s more the result of the fact that their viewpoints are often ones with which I disagree– and am therefore unlikely to quote in support.  However, a few months ago, I was having beers and chatting with a silver-haired prosecutor in his 60’s, whom I respect, and he said something that stuck with me.  He said that any law named after a person is usually a stupid law.

There are a couple reasons why such laws are generally a bad idea.  First, if a law actually features a victim’s name, then it necessarily comprises an angry and/or emotional response to some particularly sad situation or unusual set of circumstances.  Laws aren’t supposed to be reactionary or emotional.  They are supposed to be the reasoned, debated, and cool-headed result of a lengthy process of debate and examination.

Second, is there really any serious crime that doesn’t already fall under a law?  I mean, there are only so many rotten things people can do to one another.  If someone hasn’t already thought about criminalizing some action, until some particularly strange set of grievous circumstances collide to produce a media sensation… is it something that needs to have a whole new law written specifically for it?  The constitutional prohibition against ex post facto laws means that the new law will simply never address the specific situation upon which it was based.  The fact is, if something someone has done is bad… there is probably already a law for it.

Sentence inflation vs. decreasing crime rate

For the past 30-35 years or so, the average length of incarceration for any given offense– well for every give offense really, has steadily risen nationwide.  This has occurred despite the slow but steady decline in the overall crime rate beginning sometime between 1975 and 1980.  Some might argue that it is precisely because we are locking people up for greater lengths of time that the crime rate has decreased.  This is a foolish, narrow-minded, and plainly incorrect deduction.  First off, we lock up a greater percentage of our population than any other country in the world.  By a good margin too I might add.  Yet, our crime rate (despite the drop) remains worse than most countries– including those with the very lowest incarceration rates.  (I simply refuse to accept that we are an inherently more crime-prone society than all others.)

Second, an anecdotal example, in my view, shows the idea to be wrong.  My home state, Wisconsin, incarcerates people at roughly three times the rate of our neighboring state– Minnesota.  And yet our crime rates are, and have been for a very long time, virtually identical.

Third, the concept of general deterrence (the principle upon which the idea that incarceration leads to lower crime rates at least partially relies) just doesn’t work in real life.  The reason is simple.  Most people who plan to commit a crime don’t think they’re ever going to get caught.  If you believe you’re not going to get caught, you surely aren’t going to run to a statute book to look up what the maximum penalties are for the crime that you are contemplating.  Sure, there is also the category of so-called “crimes of passion.”  These would include most violent crimes and sexual assaults.  Again, the mentality on the cusp of such an impulsive heart-pounding thoughtless act is not conducive to deliberation over what type of sentence one might be exposed to if apprehended.

So then.  We still have two unresolved questions.  Why has the crime rate steadily dropped, and why have we become so crazy about incarcerating people?  Here are my theories on both:

I think the crime rate has consistently declined for a combination of reasons.  I think we’ve become a more educated society and (though the middle class seems to be shrinking) a more affluent society.  A poor person by today’s standards is better off than a poor person by 1975 standards.  People aren’t as desperate to steal.  Programs to address societal ills such as domestic abuse and addiction are more pervasive and effective– though still vastly under-supported and under-funded.  But perhaps the most intriguing theory I’ve come across to explain the drop in crime, is the banning of lead based additives in gasoline and house paint.  It is medically well-established that ingestion and inhalation of lead makes people, well crazy.  Surely it contributed to criminal behavior.  And the decrease in crime rate began pretty much right at the same time the bans went into effect.  Coincidence?  I’m thinking not.

So why have sentences gotten longer?  I think of it as a series of cause-and-effect dominoes.  Whether it was accurate, or just the product of media and/or politically based fear mongering, in the late 70’s society became convinced that criminals were running rampant (remember all those Dirty Harry movies?).  That there was a murderer, rapist, or some other form of evil waiting for them around every corner.  This in turn made it very sexy for politicians seeking office to pound on their podiums and scream to the heavens “WE ARE GOING TO GET TOUGH ON CRIME ONCE AND FOR ALL.”  Then, of course, having promised the populace that all of the criminals were finally going to be rounded up and punished, they had to make good on those promises once elected.  These led to a number of legislative initiatives which ultimately made the prison populations skyrocket.

First, the maximum penalties for many crimes were lengthened.  Second, a lot of penalty enhancers and “three-strikes” laws were enacted.  Third, mandatory minimum sentences were imposed on many types of crimes.  Most of these measures essentially removed discretion from judges who might have been tempted to fashion a milder sentence based upon the particular circumstances of a given case.  But fourth, so-called “Truth in Sentencing” regimes swept across the states.  Truth in sentencing laws, for the most part, basically abolished parole boards.  Rather than prisoners being released early if they had demonstrated exemplary behavior while incarcerated, Judges were forced to determine at the time of sentencing exactly how long defendants were to serve while incarcerated and how long they were to be on supervision afterward.  Incentives for rehabilitation while incarcerated were removed, discretion was taken away from parole boards (who were far more well-acquainted with any given prisoner than politicians were)… and voila.  Prison populations skyrocketed.

All of those untold hundreds of politicians “got tough on crime” alright.  And we are all worse off because of it.

Under-reported and falsely-reported crimes.

Two specific categories of violent offenses, I believe, have very obvious victim reporting tendencies to which many attorneys on both sides of the aisle seem largely oblivious.  Certain domestic violence cases, and certain sexual assault cases.  Again… this probably falls into the ever-expanding category of my buzzed tavern rants.  It is supported mainly by my own anecdotal observations over the years, combined only with logic.  But here goes:

Domestic violence cases are sadly one of the most under-reported violent crimes in the world.  Untold numbers of women undoubtedly cower under the fists of abusive husbands without reporting for a variety of reasons.  Among them, fear of retribution, fear of being alone, fear of losing their children, and fear of losing the financial support provided by the abuser.  To this I would add a subcategory of abused women: those living illegally in the U.S. who perhaps don’t speak English, rely upon their abusive (but english-speaking) husband to conduct all of even the most trivial affairs of every day life, stay home with the children, and fear deportation were they to report.  [Yes- I’m aware of the VAWA act, but I doubt many of them are, and it probably doesn’t encourage reporting in most cases anyway.]

Equally as saddening, are sexual assault cases.  There, for a plethora of reasons– including confusion, wrongly-placed shame or self-blaming, not wanting to report a friend or family member, or not wishing to be dragged into court… victims neglect to report a sexual assault.

I have little doubt that under-reporting is far more common than false-reporting in both of the above categories.  HOWEVER, I believe that false reporting happens far more frequently in the above two categories of offenses than it does in practically all others.  In domestic violence cases this is usually seen where a defendant is on probation (which the allegedly “abused” spouse knows all too well), and is revealed to be cheating on the spouse with another woman.  In such cases, the enraged “abused” woman is all too happy in many cases to falsely report their “abuser” (perhaps even going so far as to put a mark on their own cheek), knowing full well that their no-good cheating spouse will be facing a lengthy time-out in an hotel with iron bars.  Many people look at me with an incredulous look on their face at the thought that there are women out there who might do this… but if you met some of my clients’ spouses you wouldn’t think it such a reach.

Falsely reported sex assault cases are a bit more complex, and probably deserving of a lengthy blog post all their own.  But to put it into extremely over-simplified terms… they usually occur in cases where there has been consensual sex.  Perhaps even rough consensual sex… And then the victim subsequently experiences “buyers remorse”.  Sometimes (especially the very religious) victims will fall into a state of denial or lack of memory and convince themselves that– even drunk, they never would have consented to sex, and therefore must have been raped.  Alternatively, some victims (again, usually drunk) will hook up with someone other than their boyfriend, fear being discovered (or actually get discovered), and in a panic come up with a way to spin the situation to their advantage.  Answer: he raped me.

Again, these are theories grounded only in reason and anecdotal observations.  The under-reporting of crimes is a terrible problem.  But, if you consider the nightmarish terror and consequences a falsely accused person must endure… I humbly submit that this an issue worthy of greater attention than it typically gets.

The continued criminal enforcement of marijuana laws in Wisconsin

As everyone is well aware, the past half-dozen years have seen (what is in my opinion) a refreshingly positive and progressive relaxation in both laws and attitudes toward marijuana on a nation wide scale.  There remain, however, a great many jurisdictions where the laws (and enforcement of those laws) remains as rigid and harsh as ever.  Sadly, the land of brats, cheese, and the Green Bay Packers remains solidly in that category.  Therefore it seems a good time to outline typical enforcement schemes and penalties one might expect to encounter here in the dairy state.

Though some counties, including Dane, have instituted a policy of not charging first-offense possession of a small amount (less than an ounce) criminally, it still can and often does elicit a misdemeanor charge based upon the still-very-much-alive state law.  The maximum penalty for first-offense possession of marijuana is 6 months jail and/or a $1,000 fine.  For a second or subsequent (lifetime) straight-possession offense one may be charged with a felony carrying a maximum penalty of 3.5 years prison (1.5 years of initial confinement followed by 2 years of extended supervision) and/or a $10,000 fine.

Now it’s important to note that one is not automatically guaranteed a misdemeanor possession charged based upon your first pot-based run-in with John Q. Law.  A large weight by itself will often be deemed to indicate dealership.  If you are found in possession of even a small amount of marijuana, but also have some plastic baggies, a scale, stacks of 20 dollar bills, and/or the small amount itself is divided into multiple smaller baggies– the cop and/or prosecutor may bypass the misdemeanor charge and instead charge you with “Possession with Intent to Deliver.”  Let’s call it PWID for short.  The maximum penalties for manufacture, delivery, or PWID vary based upon the weight or number of plants involved.  Take note of the emphasis on the word “or” there.  The prosecutor may use whichever number allows for the highest maximum penalty.  Additionally, there appears to be no hard and fast requirement that the dry weight of the plant necessarily must be used.  Anyway, the max penalty breakdown for manufacture, delivery, or PWID of marijuana in Wisconsin is as follows:

up to 4 plants or up to 200 grams (about 7 ounces):  3.5 years, $10,000 fine

4-20 plants or 200-1,000 grams:  6 years, $10,000 fine

20-50 plants or 1,000-2,500 grams:  10 years, $25,000 fine

50-200 plants or 2,500-10,000 grams:  12.5 years, $25,000 fine

more than 200 plants or more than $10,000 grams (a little over 22 lbs.):  15 years, $50,000 fine.

A couple of final things to note.  Very often manufacture or PWID charges are accompanied by other charges such as Possession of Paraphernalia (30 days/$500 fine) and Keeping a Drug House (1 year/$25,000 fine).  There are also penalty enhancers for PWID/manufacture within a thousand feet of any park, school, jail/prison, or multi-unit housing public housing project.  I’m also personally aware of a particularly zealous prosecutor (in another county) who charges defendants with the archaic (but still valid felony) of possession of marijuana without a valid tax stamp.  All of these add-ons can push your maximum penalties to horrific levels.

Though it has been de-emphasized somewhat, the US DOJ still does prosecute federal marijuana crimes in Wisconsin as well.  In my experience, they largely focus on importers from other states where marijuana has been legalized.  On the other end of the spectrum, many municipalities will often prosecute ordinance violations as well.  Those tend to be expensive, but you do not risk incarceration.  I won’t elaborate further on those areas, but mention them only to illustrate that running afoul of state law is not the only potential worry for those fond of Mary Jane.

Here is my advice.  If you are an even occasional user of marijuana, know the risks to which you are exposed– and if possible try to learn the policies of the prosecutorial agencies where you live.  Frankly, rural counties tend to be a lot worse.  Don’t ever smoke in your car.  Don’t consent to searches of your person, car, or home.  But most importantly, if you find yourself in hot water– hire yourself a knowledgeable and competent lawyer.  Like me!

The danger of pulling over to “sleep it off”

As a criminal defense attorney practicing heavily in the area of OWI law (not to mention in a cold-weather state known for its heavy drinking)– I’ve encountered several OWI cases over the years where the factual allegations involved a driver who was found sleeping within their still-running vehicle adjacent to the road.  For those of you from warm weather climates who may be asking yourselves “why did they leave the car running?”, the simple answer is usually to avoid freezing to death.  Anyway, this situation is typically prosecuted as an OWI, it’s not as unusual as one might think, and carries with it some interesting legal aspects.

First off, to convict one of OWI, the state must prove three essential elements.  “Operation” (of a motor vehicle), impairment at the time of operation, and the (typically undisputed) fact that the vehicle was driven upon some public thoroughfare.  Turning to our sleeping driver scenario, one might ask- if the cop didn’t actually see the person drive the car, then how could they be cited with operating while intoxicated?  The answer to that question lies in how the term “operating” is defined under the law.  In Wisconsin, “operation” is defined as the physical manipulation of any of the controls necessary to set the car in motion.  So basically turning the key would qualify as “operation,” even if you never put the car in drive, because the car can’t be driven without first starting it up.  Accordingly, if you are sitting alone on some remote shoulder of the road in a running car, it looks pretty likely that you are not only the person who drove it there (on a public thoroughfare)– but are also likely the one who turned the key to start it up.

From a prosecutorial standpoint, there are two unique potential problems with OWI cases such as these.  First, since no driving was directly observed by the cop, even though the person may be sitting in the driver’s seat of a running car it isn’t necessarily a foregone conclusion that they are the one who turned the key or drove the car there.  This problem is typically remedied rather easily by the officer on scene when they confirm with the driver that they are/have been alone, and were in fact the person who drove the car to that location (as opposed to someone else who has since wandered off).

The second problem is a temporal issue.  In order to secure a conviction the prosecutor will have to convince a jury not of whether the defendant was drunk at the time the police arrived– but that the defendant was drunk at the time of the driving.  Police officers will usually try to elicit admissions from the defendant as to how long they’ve been there sleeping, what time they pulled over, and what time they left the bar.  Then, in combination with the BAC at the time of the arrest, certain inferences and extrapolations may be made.  But, particularly where the defendant is very drunk, this info will often have questionable reliability because they themselves may not know the timeline.

A competent defense attorney will usually be able to make a good argument that there is no way to know for certain how long their client was sleeping by the side of the road, or what their BAC was at the time of the actual driving.  Therefore, the driver could have been under the limit and simply very sleepy at the time they pulled over– and their BAC rose (due to gradual absorption) while they slept. This is known as a curve defense and works better when the timeline is protracted or unknown, as in our scenario.

Ultimately I’ve gotten prosecutors to dismiss a number of cases like this by gently pointing out the problems with their case.  But what is probably more persuasive is appealing to their sense of right and wrong.  “Come on… by prosecuting this you’re sort of forcing people to drive all the way home when they feel too drunk to drive.  Is that really in the public’s best interest?  Dismissing is fair because, after all- my client was only trying to do the right thing.”

Four reasons why the death penalty is a terrible idea.

I’m lucky enough to practice in a state where we don’t have the death penalty (not because we are noble, but because we are cheap).  But the death penalty (“DP” infra) is a subject in which I think most intelligent defense attorneys have a keen interest.  Now this is a very large, complex, and heavy subject– certainly better reserved for some forum more substantial than a blog post.  But what the heck… I think I can lay out the same argument I spit out at non-lawyers while I’m buzzed in a bar.

Reason #1:  False confessions.  The threat of a prosecutor seeking the death penalty (as opposed to “only” life imprisonment) induces suspects to confess to committing murders they didn’t commit.  There are many confirmed instances of this, and we will never know how many false confessions the threat of death has actually induced over the centuries.  Not to mention how many guilty persons remained free while some poor shlub confessed to, and served life for, their crime.

Reason #2:  Getting a fair trial is dubious.  The rate of wrongful convictions in death penalty cases is higher than it is in all other criminal cases.  Possibly much higher.  This is due primarily to the process by which DP juries are selected.  You see, DP cases require questioning of potential jurors as to whether or not they would be able to vote to put someone to death if they found them guilty.  Those answering no of course, are then automatically discarded.  It is difficult to imagine people getting a fair and impartial jury, when the composition of the pool has already been severely slanted by removing those jurors without the predisposition to execute.  Not only that, but during the first stage of the trial process all of the jurors are asked to assume guilt as part of the hypothetical question itself– before they’ve heard or seen a single shred of evidence.  While it is surely nigh impossible to quantify exactly how much that poisons the process, it surely cannot be zero.

Reason #3:  It fails to promote morality.  I know, I know.  You probably think that this is a value-laden point that encompasses my pre-existing anti-DP view.  But hear me out.  No matter how you spin it… the death penalty is the government sponsored taking of life.  A society simply must be a better one where the mentality is that all killing is wrong, as opposed to some killing is ok (which is what the death penalty, by catch-22, inescapably promotes).  The legality of the death penalty is government endorsement of the concept of “an-eye-for-an-eye.”  I think the values of a society are reflected in its laws, but its laws also have a subtle effect on the mentality of those who are subject to it.  Were you to overhear a mother tell a young child it was ok to go out and bash someone in the face, provided that person had done something similar to their friend, would you really think her a good mother?  Also, if the concept that some killing is justified is promoted, how often does that lead to vigilante/sick-minded individuals deciding to simply leave the government out of the process and take matters into their own hands?

Reason #4:  It’s expensive.  Seriously, the litigation on the front end is much greater, and the cost of appeals are exponentially higher.  In fact, study after study has shown that the litigation costs associated with the death penalty far outweigh the cost of simply incarcerating someone for life.  That’s across the board in every state.  There is no way around this.  You can’t simply take away someone’s right to appeal and call yourself a country of due process.

Two years ago the voters of Wisconsin passed (by referendum) a republican-sponsored bill- allowing the death penalty.  Thankfully, to date it has not been made law.  Sadly, it’s reason number four that is the case, instead of reasons 1-3.

My five red flags when hiring a criminal defense attorney

For the past decade I’ve limited my practice almost exclusively to the area of criminal defense in Dane County, Wisconsin, which is home to roughly 1/2 million people.  Although there are somewhere between 2,500 and 3,000 licensed lawyers of various types within the local community (it is the state capital), I would estimate that a mere 30 to 40 private attorneys handle the majority of the local private criminal defense work.  They are mostly all fairly small operations, consisting of 1-3 lawyers plus staff.  Of these 30 to 40 lawyers, probably the most financially successful earn their livings mainly from private retainers, while the remainder tend to vie for as many private clients as they can get while supplementing their case load with various public defender and court appointments.

You may have noticed my italicization of the word “financially” above.  There was a specific reason for that.  In my observations, many of the lawyers who I find to be the most effective, respected, astute, brilliant, hard-working, and talented don’t seem to be the top earners.  Conversely, though most aren’t bad, many of the most financially successful lawyers aren’t what I would consider to be the best lawyers.  This is a phenomenon with which I have some fascination.  Without a doubt, many lousy lawyers are financial failures and vice-a-versa.  But how do some sub-par lawyers out-earn superior ones?

Below is a list of some of the methods that I’ve personally come to believe such attorneys use to market, sell, and overcharge for their services.  This list is by no means exhaustive, and falls into the categorical and ever expanding box of my pet theories.  These are simply the red flags I would tell my non-lawyer friends and family members to watch for when interviewing potential criminal defense attorneys for their services:

1) Lawyers who tout labels such as “superlawyers”, “AV rated” or various other terms that sound awesome (but you aren’t really sure what they mean).  In truth, these labels are usually nothing more than terms that lawyers pay companies rather large fees for the privilege of using.  It’s a marketing gimmick.  It has less to do with their abilities or achievements, than it does the depth of their pocketbooks.  If a lawyer has paid for one of these labels, fine.  Not necessarily a deal killer.  But if they really like to flash it around… I’d probably walk away.  Actually, we can just expand this category to include all lawyers who are extremely prolific advertisers.  The fees they charge their clients will usually reflect their need to pay off massive advertising bills, and if they were worth their salt they probably wouldn’t need to advertise so much to begin with.

(Also- don’t hire lawyers who wear fedoras, cowboy hats, or any hats in their ads.  No specific reason.  I just think it’s dumb and gimmicky.)

2) Flowery language.  Yes… In the legal world we do so love to throw around a lot of jargon that probably intimidates some and annoys many of those who inhabit the real world.  But there is no legal concept out there that can’t be readily explained in ordinary english.  If a lawyer habitually throws out terms with which you aren’t familiar during your initial consultation, he/she is probably either trying to snow/BS you… or he/she is not smart enough to tailor their rhetoric to their audience.  If it’s the latter, then they likely won’t be very good in front of a jury.  Look for someone who speaks plainly and understandably, but intelligently.

3) The “H” word.  I would speculate that a fair number of lawyers out there tout the fact they went to Harvard or some other Ivy league school.  I myself went to an excellent (though non-ivy league) lawschool, ranked in the top 30-35 nationally, and have encountered a number of Harvard grads during my time in practice.  I can say unequivocally that there were people in the top ten percent of my lawschool graduating class who I would not trust to get me a ham sandwich– let alone represent me if I were in trouble.  As for the Harvard people, though it is an admittedly small sample size, most (though not all) have just seemed sort of strange and not what I would consider above-average in any sense.  (Also- I love criminal defense, so I can see why others would want to do it, but I can’t help but wonder why a Harvard grad wasn’t offered something more temptingly lucrative straight out of lawschool…)

Conversely, some of the most brilliant and effective lawyers I’ve met over the years derived their degree from third tier law schools.  Now I’m not advising you to actively search for a lawyer who got bad grades from a junk lawschool, but be wary of anyone who actively boasts about their school name.

(And no… this isn’t sour grapes because I was rejected from a prestigious school.  I wasn’t.  I’ve just truly failed to be impressed by their grads.)

4) A heavy reliance upon an unusually lopsided win-loss record.  This one is probably counterintuitive to those of you out there in the real world but hear me out.  Despite the impression you may have from TV, the very best criminal defense lawyers, the true warriors… will inevitably try and lose a certain sizable percentage of their cases.  Many cases, simply due to their nature and overwhelming evidence, have a low chance of acquittal at trial (in fact, most cases are naturally stacked in favor of the state, otherwise they probably wouldn’t have charged them to begin with).  Further, for various reasons many bleak-appearing cases simply are not settle-able in advance of trial.  So… if there is overwhelming evidence, and it’s not settle-able… Daniel Webster himself probably wouldn’t be able to keep it out of the loss column.

I’ve been told that one of the most prominent defense lawyers in the midwest lost his first 30+ jury trials.  I myself accepted many case appointments early in my career that were almost inevitably losers on their face, cases of which other lawyers were afraid.  I felt it more important to develop skills and gain trial experience than to compile statistics.  But practically every trial client I’ve ever had expressed sincere gratitude and admiration for the performance I gave, and in some cases optimism blossomed where only hopelessness had previously reigned.

Additionally, trials seldom unfold quite as expected, so they tend to contain a certain amount of inherent unpredictability.  With the right jury, sometimes lawyers may win cases that perhaps they had no business winning, just as sometimes they may lose cases that by most accounts they should have won.  Regardless, factors such as strong evidence and hidden predispositions of the individual jurors usually contribute more to the final verdict than any relative disparity between the abilities of  the opposing attorneys.  It makes me uneasy when I hear lawyers claim responsibility for outcomes for which they are at most only partly responsible.

You certainly don’t want a defense attorney who will be out-litigated by the prosecutor.  You want a lawyer with the strength and talent to not only sustain and diffuse an onslaught of incriminating evidence, but to turn the tables and make the prosecution backpedal wherever possible.  But initially you want to look for lawyers who have the courage and work ethic to try cases at least somewhat regularly.  Such lawyers will typically enjoy positive reputations among judges, clients, and colleagues– and they will hopefully receive the best settlement offers from prosecutors.  So ask not what a lawyer’s win-loss record is, but how long it’s been since they had a jury trial and how many they’ve had.

As a final caveat I’m not saying here that a good win-loss record is necessarily a bad thing.  But my overall point is that if a lawyer starts boasting about his or her winning record, you should wonder how their record came to be that way (assuming they are in fact being truthful).  Is it because they customarily withdraw from or shy away from cases that appear to be long shots?  Do they refuse to take challenging cases or serious felony cases?  Did they get lucky a few times early on in their career, and haven’t actually tried a case in 20 years?  Do they regularly brow-beat their clients into taking lousy deals (in order to protect their “winning record”) when they don’t like their odds of winning?  If so, these lawyers may be ones who act more out or their own cowardly self-interest than the best interest of their clients.

5) Assurances they’ll get your case “thrown out” by inundating the state with pre-trial motions.  Though it does happen occasionally, it’s somewhat rare for pre-trial motions to result in outright dismissal of all charges.  During the initial consultation in my “typical” drug case or drunk driving case I will usually identify about 2-4 issues that will merit closer exploration/examination as the case progresses.  The majority of these issues end up being irrelevant or non-starters for one reason or another, while others lack legal authority to support a pre-trial motion.  I file motions to dismiss or suppress evidence in almost every case where it is conceivable such relief might be obtained… which probably ends up being no more than one of every five or six of my cases.  Among all of those motions, probably less than a third are granted (which is actually still a fairly high percentage of success).  Reality: cops just don’t screw up that often, and getting judges to throw out cases is like pulling teeth.

Now I know from experience as co-counsel on prior multiple co-defendant cases that some attorneys habitually file a barrage of six, ten, even twelve boilerplate pre-trial motions in almost every case they have.  Motions that for the most part have not only a zero chance of positively affecting the outcome, but possibly serve to undermine the attorney’s credibility with both the Court and prosecutors.  I suspect that some of these lawyers mislead their clients as to the value of the frivolous motions in order to justify their exorbitant fees.  Stay away from them.  They’ll waste your hard-earned money.

So there are my tips children.  Steer clear of lawyers who tout fancy sounding awards (for which they paid), who spout the name of the lawschool they attended, who boast of lopsided win-loss records, who speak unintelligibly, or who promise success by filing a barrage of (useless) motions.

Police power

In the wake of the Ferguson insanity, I thought it might be a good time to write about an issue upon which I, as a criminal defense attorney, have gotten an education repeatedly over the past decade.  That is… the absolute and total deference so often afforded to police officers by the public, prosecutors, Judges, jurors… heck almost everyone.

So often do I hear Judge’s (among others) say that the police “have such a hard job” that they don’t want to make it any harder for them.  So often… scratch that… every time it comes down to my client’s word against that of a police officer, my client loses.  Even on subtle points where the cops have arguably greater incentive to bend the truth than my client would.  So often do I see police officers enter courtrooms and sit down in front of juries, wearing nicely pressed uniforms, shiny badges, and polished firearms– knowing that the jury is probably eating up every, single, word, they are saying as gospel truth.

It infuriates me.  You know something?  Almost everyone has a hard job!  Whenever I hear a judge or someone say that “cops have such a hard job”, what I’m really hearing is that they are to be excused for screwing up (or violating someone’s civil rights) because they can’t be expected to manage that much.  It’s bullshit.  You don’t think cops will lie (or at least subtly bend the truth to conform to the version of facts that they want to portray)?  Think again.  These are professionals who take immense pride in what they do, almost to an egomaniacal extent in many cases.  These are people who are routinely accustomed to projecting authority.  To managing people through the image of power and control.  To this mentality, the idea of admitting that they were wrong, or made an error, is abhorrent.  And when it comes to having any sort of problems with conscience at the idea of presenting a skewed or misleading version of facts under oath in the courtroom, I believe this is easily quelled by the simple self-reassurance that they know the defendant is guilty, they (the police) are the good guys, and therefore the ends justify the means.

Why does everyone automatically assume that these individuals are benevolent, altruistic, and virtually infallible?  Probably, because police are perceived to be community protectors and, should one need help, someone wearing a uniform with a badge and gun most likely would show up at your door to render assistance.  But I think the level of reverence afforded to police officers is misguided.  To become a cop one doesn’t need much of an education.  In many cases just a two-year technical school degree.  In others, not even that.  Many city-wide police agencies run their own training academies, where cadets can become officers, patrolling the streets with a gun, inside of a year.  And yet we seem to feel totally at ease with people who barely have anything beyond a high school diploma making life or death decisions.  Conducting searches.  Deciding whether to pull the trigger on an unarmed suspect or not.

Don’t get me wrong.  There many, many, good people doing police work.  People who chose the profession for the precise purpose of helping others (as I like to think of as the reason I became an attorney).  I’m proud to count a few members of law enforcement among my good friends.  But I think there is also another vast number of people who got into law enforcement for the wrong reasons.  People who enjoy being in a position of power over others.  Perhaps people who were perhaps picked on in high school and are now paying it back to everyone else in the world.  People who take pleasure in “sticking it” to others.  If you think about it, law enforcement is just as attractive a profession for bullies and gun-nuts as the priesthood used to be for pedophiles.

So my advice for the day is this: The next time you are sitting in a jury box, or the next time you are pulled over by a cop… be respectful.  Be polite and courteous.  But look beyond that appearance of officialdom.  See them as a person who though invested with power; may not have much education and is subject to just as many biases, prejudices, and ulterior motives as any other human being.  And hope that you have one of the “good” cops– while being vigilant you might have one of the others.

What will make your Federal drug guideline worse?

As a regular defender of persons accused of drug crimes in federal court, I have become accustomed to sorting through and challenging the morass of literature that comprises the US federal sentencing guidelines.  For any of you who don’t know what the federal sentencing guidelines are, they are found in a manual (roughly 1.5 inches thick) and are used to compute a range of years/months that the Judge will essentially use as a starting point in determining what your sentence will be.  The sentence ultimately handed down may be within the guideline range, below the range, or (in rare cases) above the range.

I am continually amazed at the litany of almost absurd circumstances that will significantly increase the penalty one is likely to receive for drug cases.  Let’s discuss two.  If you possess a dangerous weapon at any point throughout your possession, manufacture, or delivery of drugs– you’ll get a two-level enhancement.  A dangerous weapon would include a gun, but it could also include anything that might be used to cause death or serious bodily injury– or anything that resembles such an instrument.  Although you might not actually be charged for it, you could theoretically be charged if you have a baseball bat next to your stash. The same might be true if you possess a belt buckle that resembles brass knuckles.

If you maintain a “premises” for the purpose of manufacturing or delivering a controlled substance you’ll also be subject to a two-level enhancement.  Notice that I put quotes around “premises”?  That’s because it doesn’t need to be your home.  If you’re keeping a pound or two of marijuana out at a storage locker (safely away from kids), that’ll count as a premises.  The thing is, it’s difficult to imagine many cases involving growing (production/manufacture) or distribution of drugs that doesn’t involve a “premises”.  I guess maybe if you’re selling out of (but not living in) your car?  The enhancement is practically ridiculous.  If you are using, but not manufacturing or distributing drugs from your own home, you wouldn’t be subject to the enhancement– but then again you wouldn’t likely be the subject of a federal prosecution to begin with.  The fact of these little compulsory add-ons are what bother me.  It’s like a used car dealer not including the undercoating in the price of the vehicle.

Anyway, I’ll close by tying up a loose end and offering what a two-level enhancement actually means.  It’s not necessarily a simple answer, and depends largely upon the weight (of whatever drug is at issue) that may be attributed to you.  On the low end of some typical drug cases, a two-level enhancement is about six months.  If you’re tied into a larger distribution case, you might be looking at an increase of 3 1/2 to 4 1/2 years over the sentence you are already facing.  So… if you have 2 two-level enhancements, you’d be adding a year (in a small case) to 7-9 years in a heavy case.

Bottom line:  Don’t deal drugs from your home, or grow weed in your home.  By all means, do not manufacture meth in your home (the chemicals are extremely dangerous and toxic to children).  If you reject my advice on those matters, you’d be best off to get rid of anything that could be construed as a dangerous weapon.  That includes bats, pipes, rambo knives, samurai swords, fake brass knuckles, real brass knuckles, and especially guns.  Hiding them won’t work.  Get them out of the house.