At Sentencing Your Story May Keep You Out of Prison!

 Last week was a gem. Twice, clients who were almost certain to go to prison when we first started working their cases, avoided that fate. First, in federal court a twenty-year-old kid who pleaded guilty to distributing heroin and oxycodone received three years probation. In state court, a client on a fourth lifetime DUI and facing felony charges was spared a stay in Idaho's pen because of what he had accomplished since his arrest six months prior.

The key in each case?  Their story.  Not some fictional account of why they were before the court facing years of incarceration, but rather, the account of their life, and how their current arrest had dramatically changed their way of thinking, and the demonstration of that change by their actions.

Here are three things to remember if you are facing sentencing:

First - every judge has that robe because he or she will protect society first.  Rehabilitation? Nice concept but in the end it is less important than protecting the rest of us.  Call us the herd.  We huddle together at night and stay in motion pushing the young and infirm to the center to protect them.  And we expect that judges will protect us from dangers of the night.  Real criminals.  Thugs.  Lions, and tigers and bears - oh my!  So if you want to stay out of jail or prison you must convince the court that you are NOT a danger.  Telling us that you have changed won't make it, and honestly, there are crimes from which no amount of personal change will save you (think murder, rape or mayhem).  So as you think about your future and are facing a real likely prison sentence, you must convince the court that you do not belong in prison.  

Second - actions matter, words are cheap.  How many times have I seen crying defendants tell the court that they made a "mistake" and they will never do so again? Lawyers out there: am I right? Of course I am!  For thirty-four years I have listened as defendants told sentencing judges how they intended to change.  Intentions won't buy your freedom.  

Get off your butt and change!  Now!  Today!  Right this minute!

Got a drug problem?  Get to an AA or NA meeting right now.  Get into rehab.  Don't wait for the court to order you to act, act now, without an order.  Prove by your actions that you belong back in the herd.  If your actions can't convince the court, you won't be going home.

Third - look like you are trying to be the man or woman society expects you to be by (drumroll please) getting to work.  That's right, work.  Judge's work.  Lawyers work.  Your mother or father (and perhaps both of them) likely work.  Societal norms produce an expectation that adults will work, and judges look at that as evidence that you are one of us. A member of the herd.

Can't find a job?  Keep looking. Beg for a job.  Call a friend.  And in the mean time volunteer.  Accept that dishwashers job despite the fact that it makes your BA in English Lit seem like a waste of time, because your willingness to work at a job you are "over-qualified" for makes it clear that will be productive, an not destructive. Humility is something that gets rewarded.  Worst case - get into a training program, complete your GED, or enroll in college. 

So how did a kid who had an opiate addiction and faced years in prison avoid that fate? He kept going to rehab (he failed twice), kept going to NA and AA, got a sponsor, worked the 12 - steps, got a job as a server in a restaurant, enrolled in school, got some more rehab, and manned up.  He admitted he had broken the law.  He talked about how low he had sunk - selling drugs so that he could get drugs to use - and then he proved he would do whatever it took to become a productive member of the herd.  He was also lucky to have parents who pushed him, but were willing to let him fail if he would not act.

How about that felony DUI?  Fourth lifetime.  And did I mention he had two prior felony convictions and had done a 180 day prison boot camp program (the infamous "rider") seven years before?  But now, he fully complied with every pretrial release condition imposed by the court when he was charged.  He never missed a court appearance, he never missed a random BAC blow, he never missed a meeting or a phone call and he kept fighting for his freedom.  He went to school, kept his job, supported his children and wife and reluctantly admitted that he had lied to the police when he said he only had a couple beers. The judge said he was avoiding prison because of what he had done while the case was pending.

You can stay out of jail, or prison, and have a real life if you are willing to act.

So if you are facing criminal charges and want to keep your life, act.  Do something.  Don't wait for the court to order you to move, just move.  A friend of mine told me once it is easier to steer a moving car. He was right - it is easier to direct an action than to start one.  Sometimes just being willing to move won't save you, but it might. 

I had a voice message from my client in that federal case the morning after he was sentenced to probation (which almost NEVER happens in federal court):  "Thanks again. I am in shock. I'm not certain what happened in there, but I am free today, and headed to a meeting."

Hang in there.

Facing Federal Charges? Research Indicates 99% of ALL Federal Defendants Will Be Sentenced!

 Attorney Alan Ellis writes a monthly newsletter that includes information and tips on federal sentencing and post-conviction matters. I just read the following from his February edition:

 - Approximately 97% of all federal criminal defendants plead guilty.

 - Of those who proceed to trial, 75% are convicted.

 - Almost 99% will ultimately be sentenced.

 - Over 87% will be sentenced to prison.

Yikes!  Virtually every defendant in a federal criminal case will be sentenced? Is that really our experience in federal court?

He is probably close. I think that 97% of all federal defendants likely do plead guilty. Why? Because they are guilty. The feds play a very different game than all other criminal prosecutors. They have unlimited investigative resources (translation - money). They can "hire" folks to act as undercover informants, who record every word you speak in their house, apartment or car. Or worse - in your house, apartment or car!

And let's not forget about technology.  For example - drones - they are increasingly used to monitor movements of suspects, and can provide critical evidence in any criminal case. There are wire taps, cell phone traces, and the occasional "tail" by agents intent of following and recording your every move.

So a person who is actually guilty of a federal crime - and there are thousands of federal crimes despite the notion that the federal courts were intended to be "limited" in scope - is probably going to be pretty well wrapped up before being indicted.  

What about the 3 persons out of 100 who go to trial? Will 3 of the 4 be convicted? I would have guessed it was more like 1 in 3, but either way this much is true - if charged by the feds, you are fighting an uphill battle.  Federal trials tend to be complex and costly. They are not battles, they are wars.  And winning in federal court is simply a lot less likely for any defendant because of the unlimited power of the United States to out prepare and outwork any criminal defense lawyer. 

Let me give you an example - in a federal case I took a few years ago - there were well over 10,000 documents to be reviewed, analyzed and controlled. By that I mean we had to have a way to know what was in which document, so we could find the information later for trial.  If each document had been 1 page (that was not the situation), and we had spent 1 minute reviewing the document, another minute summarizing it, another minute considering whether it would be relevant at trial and another minute adding it to a database so that we could find it as needed, we would have spent 40,000 minutes just to get that initial review done. That amounts to 666.666 hours of time, a Devilish task ("666") that would kill more than 16 weeks of full time work.  And that assumes that you do nothing else for those 16 weeks! Just spend all your workday for 16 weeks for the first pass over the 10,000 pages!

But each document was not a single page, and some took more time to read than a minute, and some could not be understood in a minute, nor could I figure out where that one puzzle piece would fit in a trial months away.

Translation (by my young client) - "the feds play for keeps, yo'." 

Which likely explains why there are so few federal criminal trials. 

The feds will bury you in papers, or hard drives or both.  Then they will pound you with motions, and crush whatever spirit remains when you consider the federal sentencing guidelines for your client.

But one time in three or four, you will win.  You will beat Goliath and it will be better than any feeling you have ever had in your life. And you will come back to that win for strength whenever you get that next Terabyte of federal discovery and wonder how you could have taken the case.

Sadly, the truth is that over 87% of all federal criminal defendants will go to prison.  Most of what we do is risk management.  We try to keep you out, but often all we can do is advise you how to lessen your time in federal control. 

And on that happy thought I return to the review of document number 9874 - in my next federal criminal war.

Soon we must consider anew Serial, and the episodes that remain. Have you finished the podcast? Do it!  My bride of nearly forty years gave it "two-thumbs up" as have most people who listened. It may cause you to wonder why anyone goes to trial, or it may remind you that some folks are not guilty.

"Everyone's a Suspect" but Why Would the Cops Believe Jay?

A youngish lawyer in court today asked me about the blog: "What's going on with that podcast?"

You may recall that I became engrossed in Serial, the investigative report turned podcast by All Things Considered. I have not been able to finish my review of the lessons in law apparent from that series. Work simply keeps me moving away from this blog and onto other more pressing matters. But it is lunch time, and I have an apple and a bottled water, so here goes.

Episode 4 looks at the question of whether Jay (a possible suspect in this murder mystery) should be believed when he says Adnan murdered Hae Min Lee. When Jay's girlfriend is questioned by the police, they tell her that "everyone's a suspect." So she tells the cops that Jay told her he helped Adnan bury the body. She talks about shovels and Jay getting rid of his own clothes so there is nothing to trace back to him, even though Jay swears he wasn't even with Adnan when the body was buried.

But every time he tells his story to the cops, it changes. First he says that he saw the body in the trunk of Hae's car on Edmonds street. Then he says it was at Best Buy. Ultimately Jay admits he lied. He says he was afraid there were cameras at Best Buy so he told that Edmonds street story to stay clear of the assumption that he helped kill Hae. He does not want to be a suspect.

What separates Jay from Adnan or anyone else is that he has something to convince the cops he is telling the truth. Jay knows where Hae's car was dumped. And he takes them there. Even though he has lied to investigators, and perhaps his girlfriend, they believe him because he knows where the car was left.

Of course it is also possible he knows where the car is because he left it there. If Jay is the killer, Adnan has spent the last fifteen years in prison for a crime he did not commit.  

Your takeaway? If you are a lawyer - you already know that everyone's story "changes" over time, even your clients' stories. More stories are not better than one, truthful story. If you are an accused - the critical question of whether you will be believed may depend on corroboration. Jay led the cops to the car. That ability to show you have the truth may be critical in your case, but you likely should let a lawyer sort out the story before telling anyone.

And there is more news for Adnan Syed - the Maryland Court of Special Appeals has agreed to hear his case. Two prior attempts at a hearing drew the axe, but apparently five or six million listeners may move the needle enough to cause even the robed ones to consider whether Adnan's trial lawyer (now deceased) botched the investigation and trial, thereby entitling him to a new trial. Fifteen years after the murder, Adnan may catch a break. More to come later on that front. 

Apple's gone. Water bottle is empty. Time to get back to selling reasonable doubt for a reasonable price.

 

The Prosecutor Has A Story - and he will spin it against you at trial!

 

By now you likely have finished listening to Serial, a podcast from the creators of This American Life, hosted by Sarah Koenig that garnered over 5 million listeners and which I last wrote about weeks ago. Time flies when you are busy. Since then I have tried a little criminal case, and been through an arbitration proceeding in an intellectual property dispute. And I am going back through Serial because there are great lessons for lawyers and defendants - actually there are lessons for Plaintiffs in personal injury cases or any other type of case. Here is the one that I took away from the second episode of Serial - the prosecutor always has a story, and he (or she) will spin it against the defendant on every opportunity. 

Story? Yes, story. In Serial, the prosecutor has to provide a reason (motive) for the jury to believe that high school senior Adnan Syed killed his ex-heart throb Hae Min Lee.  The prosecutor's version - spun like a great master - Adnan was so in love with Hai that he could not get over being dumped. He was devastated, and humiliated so he killed her.  To make that story stick, the prosecutor made Adnan out to be a devout Muslim who was confronted with the choice of serving his faith, indeed - his God (Allah) - and meeting family and cultural expectations, or loving a girl who would never be acceptable to either family or community. 

The trouble with this explanation, as Koenig reports and Adnan confirms, is that he wasn't "that good a Muslim." And he wasn't, according to the people who knew him best, that crushed when Hai called off their relationship. "He was a player..." according to his best friend, back out with other girls after Hai left him and fell for the guy at the optical shop.

So why does this matter? Because in every criminal trial the story is the thing that jurors latch onto and the thing they choose. If they choose the prosecutor's story, you lose. If they choose your story, you may, assuming all the planets line up in just the right order, WIN. 

I mentioned that I tried a little case in December. I really like the client and I thought his defense was true and it sounded true. He seemed trustworthy and the story seemed like a lock, but then he testified. The story changed in just one detail - but that detail destroyed his credibility with the jury. Once that is gone, you cannot recover. If you have told your story to the police, and explained why you did whatever it is that has you in need of a criminal defense lawyer, the story cannot change. 

So we lost that case. And as I think about it now I realize that the prosecutor's story was not any better than my client's, but the client's story changed just a bit to make it seem like he had a second defense to the charge - and that minor change was enough to cause us to lose. The prosecutor spun that change into a victory by harping on the fact that my guy had never before told that part of the story. 

Spin to win - or on our side - lose.

The moral here? Listen to the rest of Serial if you haven't already done so. Then remember that you should only tell your story once - at trial - so don't answer the police officer's questions when he wants to talk to you. And finally, remember that the State or the Feds will have their own story and they will spin it against you to explain your actions. Be ready for trial by focussing on your version. 

Your Story is Your Only Hope - So start listening to Serial on PBS

 “For the last year, I’ve spent every working day trying to figure out where a high school kid was for an hour after school one day in 1999. Or, if you want to get technical about it (and apparently I do), where a high school kid was for twenty-one minutes after school one day in 1999….”

And so it begins. Serial, a podcast from the creators of This American Life, hosted by Sarah Koenig.

The true story is told a week at a time. It takes us through Koenig’s investigation into the disappearance and murder of Hae Min Lee, a high school senior. Her ex-boyfriend Adnan Syed sits in prison today, fifteen years later, convicted of murdering Hae Min.  He was seventeen years old when she disappeared and he had to answer that question: "so where were you on January 13, 1999?"

Hae Min Lee was the daughter of immigrant Korean parents and he, the first generation son of immigrants from Pakistan. His family is Muslim. Hers is not. Their love was a secret from both families. He can’t get permission to go to the home coming dance because, well, as I said he is Muslim. In Islam, genders do not mix until marriage. There is no “dating” in his culture, at least not his parents’ culture. Secretly he is not a good Muslim. He dates, he drinks, smokes weed, and hangs out with kids who do the same. But, he thinks, on the scale of stuff that kids do, his sins are minor. He is a good kid, with good grades, headed for college and an American life.

But did Adnan kill Hae Min? Or was it Adnan's friend Jay, who tells detectives he helped Adnan bury Hae Min. Jay got a sweetheart deal and avoided trial. He got probation, while Adnan got life.

Here you find plot, characters, a true crime “who done it” with the ups and downs of the journalists who try and figure out if Adnan is wrongly convicted. Sometimes, Koenig confides, she thinks he might be guilty. Sometimes she cannot believe he did it.

So did he kill his high school sweetheart? Did the police botch the investigation? What about his lawyer – did she throw the case to collect more money on an appeal?

The first episode is entitled The Alibi. It will hook you and you will not soon stop listening. As I started the podcasts on my trip to a court hearing a hundred or so miles north of me today, I was reminded  that great storytelling must be shared and we lawyers can learn much from Koenig. 

If you are charged with a crime you will learn more about the system – cops and judges and the way that lawyers work, or should work - than anything else you are likely to read or listen to. It may cause you sleepless nights because you must confront the reality that almost nobody starts out believing you are innocent - presumptions be damned. But more about that later.

And if you are a trial lawyer; a guy like me with baggy pants, an aging face and a love of battles before parties of twelve, you will be captivated. I don’t say this casually. This series is filled with lessons for lawyers about (drumroll please):

STORY.

The only real way to win at trial is to tell our clients’ story. Even when we do that well we may still lose, but this much is clear.

No story, no chance.

Story sells. Not lawyers. Not high priced suits with fancy briefcases. Nope. Story, and the ability to convey that story to the jury. The best lawyers are the best storytellers. Period.

So go to the website (serialpodcast.org) and start to listen. Serial  begins with this dilemma – how would you tell an investigator who believed you killed your former girlfriend and secret lover where you were, what you saw, who you were with and the sequence of a day that happened six weeks ago?

Assume your life and freedom depend on it.

Because it might. For Adnan Syed, it did. Your alibi is your story.

And then let’s talk about storytelling in the next week or so – if I can ever break away from preparing for that next trial. 

Panel Kills Public Defender Changes in Idaho - Don't Blame the Defenders!

 From the Idaho Statesman tonight: 

"Four years ago, a report from the National Legal Aid and Defender Association found that Idaho is violating its Sixth Amendment obligations to defendants. Public defenders across the state were being given too many cases, and some defendants weren't meeting their attorneys until they were in the courtroom. The report also said that defendants sometimes felt pressured to accept a plea agreement rather than go to trial."

The Idaho Statesman is reporting that the legislative committee charged with making changes in our state's method of providing public defender services will not change - leaving the counties responsible for ensuring that indigent defendants have effective representation when they face criminal charges. The article indicates that the obligation for providing those services will remain with the state, but decision-making on how those services will remain local.

You know - like "Buy Local."

Here's the thing - Public Defenders remain some of the most committed lawyers on the face of the earth - but they do so at a price. They are underpaid - making far less than the lawyers for the state, and overworked - handling more cases than time permits for adequate preparation.

Only an increase in funding would allow for an even playing field. Regardless who makes the local call, the problem is simple. The legislature passes bills increasing punishments and adding to the "list" of crimes because it is easy to be "tough on crime." But they do not provide additional funds to the folks who bear the burden of trying to defend the accused. Why do we need, for example, a specialized crime for battery on an ER doc/nurse/PA? A battery on any person - doctor, nurse, PA, janitor, realtor or police officer isl intolerable. I say this knowing that tonight I will go home to my wife, a dedicated RN with thirty years of service. Still, to highlight one group for special treatment simply permits an easy magnification from a misdemeanor to a felony charge - and makes the importance of representation even greater.

Criminal enforcement costs money - and that includes the cost of public defender services. Add to the list of crimes or add to the potential punishment and you add to the costs. Maybe a better solution exists to these problems. Maybe we shouldn't put so many people in jail for so long. Maybe a DUI sentence in Ada County should not be any higher than a DUI sentence in Canyon County. 

But now I am rambling - the point here is simple - our Public Defenders need adequate funds to do their job. And the State legislature needs to buck up. You want the locals to decide how to provide Defender services? OK - then pay up. Make sure the counties have sufficient money to meet the requirement that any person charged with a crime gets the effective assistance of counsel. That includes indigent defendants.


Read more here: http://www.idahostatesman.com/2014/11/24/3505931/legislative-committee-kills-counties.html?sp=/99/1687/&ihp=1#storylink=cpy

NY Times Says Idaho Dead Last at Protecting Juvenile Records

 Associate Attorney William Young is at it again:

There is an article today in the New York Times discussing the issue of juvenile offenders and the importance of sealing their records from the public eye. The article examines how many states fail to protect the confidentiality of juvenile records despite data showing that “95 percent of young people enter the juvenile justice system for nonviolent crimes like theft or vandalism — behavior they typically leave behind when they move into adulthood.” The failure of states to protect this information can follow teen offenders into adulthood; leading to them being denied jobs, housing, and admission to college. Each state deals with this issue differently but as the article explains “only a few states have ironclad systems prohibiting employers and members of the public from gaining access to these records.”

The Juvenile Law Center, a public interest law firm in Philadelphia, rated all the states and the District of Columbia based on how well they protect confidentiality of these records. What’s the problem for Idaho? “Dead last is Idaho, because it has no confidentiality protections for juvenile records and makes very few records eligible to be sealed.” With a simple search on the Idaho Repository the public has access to nearly all-juvenile records in Idaho.

The Idaho Repository is a useful system that allows anyone to access civil and criminal state records at just the click of a button. It is one of the most transparent state systems available and, in many ways this is an important and valuable resource to many people statewide (I know I use it every day). However, in my opinion, it is a shame that most juvenile records follow Idahoans around indefinitely. I agree with the central thesis of the article: “[t]he fact that most juvenile offenders never presented a threat to public safety and have no further contact with the law after they become adults argues strongly for sealing or expunging records so that young offenders are not permanently impaired by their youthful transgressions.”

You can find the full article here: http://nyti.ms/1t0Y9pO.

If you or your child is charged with a juvenile offense it is important to hire an attorney familiar with juvenile court. With the right attorney as your advocate, you may be able to avoid the negative impacts discussed in this article.

Fight that Ticket!

 

Peterson Lawyers associate attorney Will Young tells us to "challenge that speeding ticket!

Speaking from experience, getting ticketed for speeding is not a fun experience. Seeing red and blue lights in your rearview mirror is not a good feeling. I realize speeding is not even close to the worst thing you can be accused of, it can still impact your life in many ways. Penalties for a speeding infraction include: steep fines, insurance rate hikes, and added points on your driving record. In the past, I have just paid the ticket and tried not to speed in the future. Recently I have discovered this may not always be the best solution.

In the past few days, I have represented two different clients on speeding ticket cases. In each one, the clients had been issued a citation for diving between 10 mph and 15 mph over the posted speed limit. After negotiating with the prosecutors, we were able to reduce the infraction from speeding to an “equipment violation.” The result: a significant reduction in the fine, no points against your driving record, and it is less likely an insurance company will increase your rates. In the end, you may save you hundreds of dollars and a huge headache by fighting that speeding ticket.

Defending a speeding infraction is a fairly quick and easy process. Both the cases mentioned above were handled in one quick hearing. This means hiring an attorney may not be as expensive as you think. Don’t be afraid to call our office to discuss the case and find out how much it would cost for you to be represented. These are common conversations that we have every day. We will happily discuss potential costs of representation and explain how we came to that number. 

"Can I be convicted of DUI if I blow less than .08?"

 This weekend I received an inquiry from someone who had been convicted after the judge instructed the jury it could find him guilty of DUI even if it did not find he had a breath alcohol level above .08%. He complained that by instructing the jury on the alternate theory - that his driving pattern established he was operating a motor vehicle while under the influence of drugs or alcohol - the Court had insured he would lose! Had it?

There are two ways to convict a person of DUI - either proof beyond a reasonable doubt that the defendant's blood alcohol concentration was higher than .08%, or that there is other circumstantial proof he was operating his motor vehicle under the influence. I have also had the experience that the State argues both, and the jury was likewise able to convict without finding a BAC above .08%. As a practical matter, cases with this kind of ambiguity often produce a settlement for a lesser crime - like inattentive driving.

This possibility is why I have told people that the field sobriety tests can seal their fate - even if they are not under the influence. More on those "tests" in another post. 

Zach Neagle is Free - Now He Must Work to Stay Free

 Back in June of 2009, I posted that Zachary Neagle had become a client. He was charged with murder - having shot his father in the head as he was asleep on a couch in their home. The case presented the ultimate challenge; convincing folks that Zach killed his father to protect his younger brother and sister from the sexual assaults he had been subjected to. Zach was charged as an adult, but the picture shows just how juvenile he was, wrapped in chains and clad in a yellow jumpsuit. He was just a kid.

Idaho law provided that if Zach went to trial and lost - a jury not believing he had to kill to protect his siblings - he would serve a life sentence in an adult prison. Ultimately we settled the case for a blended sentence that placed Zach with Idaho Juvenile Corrections. He plead guilty to manslaughter. If he did well in Juvenile Corrections, he had a chance to avoid adult prison and could be placed on adult probation.

As I noted in January of 2011, Zach was working hard in the Juvenile Corrections world to build a life. He was going to school, and working on the skills he would need to re-enter the world. I hoped someday he would leave confinement and be free - at least free of jails, prisons or corrections centers.

August 1st was my birthday, and it was the day Zach ended his time in juvenile corrections and began adult probation as part of his sentence. I would like to report that the transition to real life (albeit on probation) has been seamless, but it has not. It may take some time. He has a good job, has supporters who care and love him, and he has a chance. But he has to work at this. Any mistake could land him in jail or worse, adult prison, the very place we have been trying to avoid since Charles Crafts called me that June day more than five years ago. 

Since so many of you call, ask and write, I wanted to report that he is making it. So far. 

Now he needs to work at staying free. He needs to fly right and stay out of any trouble.

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