05 Jan Reflections From The Past Year of Criminal Defense Practice: Lesson One
To start off 2017, I thought I’d offer a few reflections from some cases I’ve completed over the past year, on what it takes to be successful as a criminal defense lawyer. Over the next few days, I’ll post on a few of those lessons. They are familiar lessons, perhaps, but they were reinforced for me in every case this past year.
Lesson 1: Investigate faster and more thoroughly than the government. When I was a prosecutor one of my first bosses liked to say that the prosecutor was the artist and the defense attorney was the critic—“We paint the picture and they just sit there and try to poke holes in it.” It’s easy for a defense attorney to settle into the critic’s role: waiting to see what picture the prosecutor will paint and then criticizing it. It’s easy and all too common, but it’s a huge mistake: the defense needs to paint its own picture, and get it painted first. That means doing a fast and thorough investigation before the government does. A lot of evidence will be gone if you don’t jump to preserve it: camera systems on a 48-hour loop, witnesses who might remember the night before but not a night a month ago; text messages that can be deleted; screen shots of easily-changed websites; the physical appearance of the incident location—all of these will only sit still to be captured and memorialized for a brief time. So don’t sit back and wait to see what you get from the government in discovery; go and get it yourself first. Best case—which is what we always shoot for — is to put together a detailed pre-filing presentation to convince the prosecutor that there’s no case to bring. Newton’s First Law of Motion controls here: it’s much harder to get a prosecutor to drop a case he’s already brought than to convince him not to bring it in the first place. And for some of our clients, such as public figures, people whose careers require international travel, or people with professional licenses at stake, the collateral consequences of a charge—even for a relatively minor offense—can be the biggest threat.
- A music-industry client was charged with assaulting a police officer one night after a party in LA. The client was on a brief hiatus from an international tour, and a number of countries will not admit someone with a pending criminal case. Canada, for example, will refuse entry to Americans with pending charges for crimes that are the equivalent of felonies in Canada. Of course, “Don’t leave the country” is almost always a bail condition. We made a motion for discovery and hustled into court before the prosecutor had looked at anything. It turned out the police had video of the “assault.” It showed the client in handcuffs against a wall, with three officers around him. One of the officers grabbed the client by the hair and threw him to the ground, and then all three jumped on him. Then they lifted him up by his heels and the collar of his t-shirt, with his body weight on his throat, and carried him off down the hall. I showed the video to a supervising prosecutor. Charge dismissed. I printed up the order for the judge’s signature on nice thick cream-colored paper, got the clerk to stamp it extra hard, and overnighted it to the client’s hotel the day before he had to cross the border. Tour saved—screaming fans satisfied.
- A retired cop was charged with kidnapping and sexual assault. The client met a woman at a bar and engaged in consensual sexual activity in his car. The woman went to the police the next day and alleged that he had abducted her at gunpoint from an alley behind the bar, then driven her to a secluded parking lot. That story was a provable lie, and I proved it in court: the court ultimately granted my motion for a judicial finding of factual innocence, an extraordinary remedy reserved for cases in which the defendant affirmatively proves his own innocence beyond a reasonable doubt (essentially the converse of the government’s burden of proof in a criminal case). How did we prove it? By jumping on the investigation immediately, so that at every stage I knew more about the case than the government. We got witness statements, surveillance camera footage, location photos, phone records, background information on the complainant. Some of this material the police had put together in their investigation; some of it we got on our own. We even got an expert polygraph examiner to examine our client—he passed, of course. Then we analyzed and organized everything long before the prosecution. We put together a comprehensive package for the DA’s office to review, and ultimately they dropped the charges. Then we prepared our motion for a finding of factual innocence, walking the court through every piece of evidence.
The end result: an innocent man was vindicated. Which brings me to tomorrow’s reflection on Lesson 2: File better written work product than the government.
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