Five Myths About Arrests and Criminal Cases

Myth# 1: Most People Accused Of A Crime Are Guilty

I do not have statistics on what percentage of people charged with crimes are actually guilty. Based on my conversations with people and my reading of the media, I have concluded that many people believe that if the police have charged you with a crime, you are probably guilty. I had a conversation with a good friend who is one of the most honest, levelheaded people I know that confirmed this belief. I was appointed to represent an individual charged with murder. I thought the case was weak, and I believed that my client was possibly innocent. When my friend found out that I was on the case, she said, somewhat in jest, "I hope you don't try too hard." You see, I believe she was like most people. She just assumed that because the police charged him, he was guilty.

Unfortunately, police and prosecutors can be like this. When they focus on a suspect, and make a case against him, they assume they have the right man. When I was a prosecutor, the police brought me a burglary case. A Defendant turned state's evidence against his Co-Defendant. The first Defendant confessed and stated that he, the perpetrator, had broken into several the homes along with the other Defendant. His statement was the only evidence against the Co-Defendant. The problem was that I learned that the Co-Defendant was actually in jail on other charges at the time one of the burglaries was committed. He had a better than airtight alibi, and I knew that the first Defendant was lying about the co-defendant's involvement in at least one of the burglaries. As far as I was concerned, he could be lying about them all. Nonetheless, the arresting officer wanted the co-defendant prosecuted. That is how strong is the presumption that, if you are charged, you must be guilty. Despite irrefutable proof that his only witness had been dishonest, the police officer could not bring himself to acknowledge that he had possibly charged an innocent man.

I dismissed the case because I understand that just because you have been charged, it does not mean that you are guilty. That is why I consider it a high calling to defend anyone accused of a crime.

Myth# 2: It Is Impossible To Win A Criminal Case

When you're charged with a crime, more often than not, the cards are stacked against you. However, the fact is, you are still innocent until proven guilty. When I was a prosecutor, I handled a number of cases that the defense attorney plea bargained that I thought might have resulted in a not guilty verdict had the Defendant gone to trial. I prosecuted a number of cases where the Defendant was found not guilty. As a defense attorney, I have had acquittals, demonstrating that it is not impossible to win a criminal case. The important thing for a defense attorney is to leave no stone unturned, to challenge the State's case wherever you can. Even when the facts look bad at first, it is important to look at every angle and see if you can come up with a defense that can result in a verdict of not guilty. I have had people come to my office who told me they had pled guilty to a crime they didn't do, but that "their attorney advised them they had no choice." I hope these people misunderstood their attorney. While I often advise my clients that a guilty plea is in their best interest, they always have a choice to plead not guilty. I sometimes wonder if some people rush too quickly to plead guilty to avoid a trial when they could have been acquitted had they held out for a trial.

Myth# 3: Any Lawyer Can Defend A Criminal Case

Sometimes people ask me questions about patent law, or anti trust litigation. I have to tell them I cannot help them. I do not practice in these areas. Many very good lawyers rarely see a courtroom because they draft contracts or handle real estate closings. These are very fine attorneys, but they are not Trial Lawyers. Likewise, many good Trial Lawyers do not handle criminal cases, but handle only civil cases. Most lawyers would advise someone faced with a criminal charge to seek out someone who regularly practices criminal defense. You might think you can get an attorney who is not a criminal specialist for a lower price. Perhaps you can, but not always. Sometimes, an attorney with less experience will actually charge a higher fee because the attorney must spend more time on your case learning what to do. In any type of law there is a learning curve, and the more cases you have handled in that area, the less of your time it takes to effectively represent your client. This is how an experienced attorney can often charge the same or less than an inexperienced attorney.

If you are charged with a crime, and you are looking for an attorney, ask potential lawyers:

  1. How long have you practiced law?
  2. How long have you practiced criminal law?
  3. How many criminal cases have you handled?
  4. How many criminal cases have you tried?

Of course, this isn't all there is… after all, some attorneys who have practiced for years are less effective than others who have only a few years experience. Also ask the attorney to describe the steps he will take in your case, how he/she will defend it. Keep in mind that the attorney will not have all of the answers in the first meeting, knowing nothing of the case. However, the attorney should have a general idea of how he/she will approach the case.

Be wary of guarantees of success. It is almost impossible to effectively evaluate a case in the first interview because the attorney does not yet have all of the facts. I have often had family members come in after a bad result in a criminal case. I often hear, "The attorney told us that if we hired him, there would be no jail time." This is an impossible promise to make. On the other hand, the attorney should be able to give you a range of probable or possible outcomes that is a best case scenario, and a worst case scenario.

I often hear people imply that if you have the right attorney, he can get anything he wants from the judge, implying that you can buy your way out of trouble with bribes. When I was a prosecutor, most attorneys were more interested in getting a deal from me, such as lowering the charge or such as a sentencing recommendation than getting leniency from the judge. Yet, not once was I ever offered a bribe to make a deal. I have seen no evidence of sleazy backroom deals or bribes in connection with the justice system in this area. This is why you should be wary of guarantees of no jail time, or guarantees that the case won't go to court. An attorney simply has no way of knowing in advance the outcome.

Myth#4: I Don't Need A Lawyer Because I'm Pleading Guilty.

"I Can Trust The Prosecutor And Judge to be Fair."

It is usually a grave mistake to plead guilty without an attorney. The fact is, I can honestly say that I have probably done more to help my clients in obtaining reasonable plea bargains than in trials. Take Ben. Ben was a successful businessman from Maryland with teenage children. Ben had a problem in the past with cocaine, but had been drug free for several years. Ben was traveling through Anderson from Alabama to Maryland in a new car that he had just bought. He stopped to spend the night in a hotel. Somebody hanging around the hotel offered him some cocaine and in a weak moment he indulged. Four days later, Ben was still binging on cocaine and had run out of money. The dealer agreed to front him some more if he would have more money wired from home. Unfortunately, the wire did not go through and the dealer was beginning to act threatening.

Desperate, Ben went to a fast food restaurant armed with a T.V. remote control in his pocket. He handed the cashier a note demanding money and pointed to the bulge caused by the remote control. Ben got the money and was later charged with armed robbery. When Ben hired me, he and I understood that there was no chance to go to trial. Ben confessed what he had done to the police. Even pretending to have a gun qualifies as armed robbery. When Ben hired me, the case had been pending for several months and Ben had been offered a deal to plead to twelve years. I knew that this was a pretty good deal for armed robbery (the minimum is 10 and the maximum is 25) and I honestly told Ben that I might not be able to do any better. However, I told him I would do everything I could.

I contacted the victim's father on the phone (the victim was only 16 years of age), knowing that with this type of crime, the victim's wishes carry great weight. It was a difficult first conversation. The victim's father was very bitter, and I spent the most of 45 minutes listening to him talk about the awful thing my client had done to his daughter, and how it had affected her. Who could blame him!? He adamantly refused to consider recommending leniency. The easiest thing to do would have been to give in and tell my client, "Sorry, but I tried." Nonetheless, I pressed on, and the father agreed to meet the next day with the prosecutor and me. This time, the victim's father was less angry. He had already vented his anger, and we were able to discuss things rationally. I was able to tell Ben's story and he was able to see him as a human being.

I was able to get the prosecutor to reduce the charge to common law robbery, which carries a ten year sentence. Ben would have served 85% of his armed robbery sentence. He would have spent over ten years in prison before his earliest possible release date. On common law robbery he would be eligible for parole after doing approximately 2 � years, and would "max out" his sentence in about 5 � years. Furthermore, he would have a less restrictive classification in the Department of Corrections, giving him better access to certain privileges and programs. Ben expressed that he was very happy with this result.

If you are guilty, it is still important to have an attorney. Sometimes my client comes in wanting a plea bargain and I determine that the client is best served by going to trial. Usually it is the opposite. The client insists that he/she is innocent but I determine that a plea is in his/her best interest. However, this is a joint decision between the client and me. I always try to lay out all of the facts and options for my client and let him make the decision.

My approach is usually as follows:

  1. I do not want to know whether you are guilty or innocent at first. Knowing my client is guilty can tie my hands if my client and I decide that a trial is best. I cannot allow my client to testify if I know he/she is guilty. However, in some cases such as Ben's, I can tell in the first meeting that this should be a plea. This is often the case where my client states that he/she confessed. However, even then, I want to explore the possibility that the confession might be suppressed. This is rare and happens less in real life than it does on T.V.
  2. I want to discover what evidence the State has. This is the flip side of my not wanting to know whether my client is actually guilty. You see, it is important that the client's decision on whether to go to trial be based on the evidence. This is because, often, the State has no case even though you are actually guilty. Likewise, the State sometimes has an overwhelming case against someone who is innocent, and it is sometime better to take a plea bargain in this situation rather than risk a trial. The best move is not necessarily based on actual guilt or innocent, but based on the evidence.
  3. Look for exculpatory evidence. This may involve interviewing witnesses, or recommending that we hire an expert to examine the physical or scientific evidence.
  4. Do legal research. For example, an important issue in many cases is whether the prosecutor can reveal to the jury my client's criminal record. When a Defendant testifies, the prosecutor is allowed to reveal his prior criminal record for felonies or crimes involving dishonesty. Sometimes you are faced with a dilemma. Your client needs to be able to tell his side of the story (a Defendant does not have to testify, it is his/her choice), but sometimes, because of his prior criminal record, it is best to take your chances not testifying. I have often had a prosecutor gloatingly state "Go ahead and go to trial, your client can't testify", referring to my client's record. However, through legal research, I have found legal precedence that allows the court to keep out the prior record of a testifying Defendant if certain criteria are met. Where these circumstances exist, I use this precedent to ask the court to allow my client to testify without having to reveal his prior record. I ask the court to rule on this prior to trial, which helps my client make an informed decision as to whether or not to testify, and sometimes this issue alone determines whether or not my client should go to trial.
  5. Evaluate the options. Does my client plead or go to trial. Often I must work on both options at the same time. In some cases, my client has a chance at a trial, but this is a dangerous option. In these cases, I assume the case is going to trial, and I work on preparing the case for trial. However, I work obtaining a plea bargain at the same time. We hold out for trial unless we obtain an acceptable deal. This approach does not work in those cases where the evidence is so overwhelming that there is no reasonable possibility to obtain an acquittal in a trial.

There are many facets of every criminal defense case, and having an experienced attorney representing the defendant can be the difference between jail and freedom. Always talk to an attorney regarding any criminal matter.


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