Criminal Law

Common Issues for Those Charged with a Crime

Self Representation is Never a Good Idea.

What about the eternal debate: Do I even need an attorney? If I am accused of some low-level crime, is it that serious? If you contrast public defender vs. private attorney vs. representing yourself, what is the good and the bad?

There is an old saying that an attorney representing himself has a fool for a client. It’s especially true in criminal defense cases. The rules of evidence are so complicated that they are hard to stay on top of, even for an experienced attorney. The law is being modified on a daily basis. The decisions being made by the higher courts and the Supreme Court are constantly changing. We need to stay on top of that, and it is difficult, even as an attorney. As a layperson without a formal education in criminal law procedures, it is impossible.

It is impossible to do it right with so much at stake: your freedom, your money, your criminal record, and your life. The other thing is, judges hate it. The clerks hate it. The deputies hate it. The entire courtroom staff hates that every court appearance is prolonged. You turned what should be a 5-minute court appearance with an attorney into an hour-long, complicated fiasco because every tiny aspect of the law has to be explained to the accused or defendant. The judges and the prosecutors cannot help but be negatively affected as they observe the defendant, and they end up giving more severe sentences as a result. The defendant could be found guilty, though they may not have been if only they had some experienced legal representation.

Also, remember that an experienced prosecutor is representing the complaining witness. So, you are going up against an attorney who is well-versed in the rules of evidence, as well as the current law surrounding the charge you are facing in court. You are going up against an expert. It is kind of like sitting down to play chess against Bobby Fischer when you have never played chess in your life. You are going to get destroyed. You do not have a chance of winning.

How about a public defender vs. a private attorney? What is the trade-off there?

 

Public Defenders are often Overburdened with Cases. This is what it comes down to. There are some skilled, well-meaning, and talented public defenders, but they often have a lot of cases in hand, so it is very hard for them to pay close attention to every file. Even the most talented attorneys in the public defender’s office often end up frustrated at the disparate sentences that get handed out to their clients merely because they did not have the time to investigate the case to find its weaknesses and its strengths and to execute a competent, effective strategy in the defense.

 

An Attorney has to be Devoid of Emotions during the Trial Process.

An attorney’s job is not only the strategist and the defender but the clear head as well. The person they are defending will be emotional, but the attorney cannot be.

There is a lot of passion involved when it gets to certain aspects of the case, especially as the trial comes to an end. However, as far as executing strategy, I have to maintain a clear head and cannot be taken in by emotions. A client might say, “I cannot go to jail. I have three children,” and the unfortunate circumstances are that they were caught red-handed in a crime, signed a written confession, and there are 16 witnesses—who are all nuns—who saw them committing the crime. So, it does not help anyone by saying, “I can’t go to jail.”

The emotional side is critical for people. They want to hire someone who is competent. They want to hire someone who can listen to them and believe and have some emotion, but then by the same token, an attorney cannot be emotional because they have to defend, and they cannot get wrapped up in the case. Otherwise, it will compromise their ability to defend. On the other hand, I do not want to say that I am not passionate about this because I am extremely passionate about winning. I like to win cases. I take fewer cases, primarily so I can pay closer attention to them and, therefore, be more effective. I am much more available to my clients. When there are fewer cases, I can devote my resources to defending those cases individually.

 

Common Mistakes Committed During the Trial Process.

How about once a case is ongoing? What kind of mistakes do you see people make that hurts their ability to get a good result? For instance, do they go on social media and think they can just tell their friend about what’s going on? What do you see people do?

I have seen people sink themselves by making statements about a case that’s ongoing. There could be someone out there who is charged with a crime themselves, and they can end up working as an informant against you. So, I tell everybody at the first meeting, don’t speak to anyone about this, even if you consider them a close friend. You can’t be talking about this case to anybody else because I have seen cases where someone testifies against the accused that the accused once considered a friend. They made a statement about their involvement in a crime, and that friend ends up being a state witness against them later, saying that the accused had confessed to them that they participated in this crime, and the friend is now receiving leniency in their own criminal matter in return for testifying against the accused.

So, you are better off not talking about anything to anyone ever, except your attorney. It is always best to let the attorney manage how it gets presented to the public or the press if that becomes necessary. There are a lot of people who get on TV or radio or talk to newspaper people about pending cases because it is great for their own publicity. Yet, as a general rule, it is terrible for a client.

It seems like being charged with a crime is a very isolating experience if you cannot talk to anybody and it is frightening. What have you seen people do to cope with going through the process because it does not happen overnight? What suggestions would you make to them when they hire you for representation? 

 When emotional, vulnerable people come to me for legal counsel, they are worried about serious ramifications if they are found guilty. They need to talk about this with someone. I generally suggest that they speak with a therapist who would be subject to a doctor-client privilege of confidentiality, or they can speak to a priest, minister, or rabbi. To a certain extent, I can empathize with them, and I can give them certain counseling concerning life matters, but it is better for me to focus on executing our overall defense strategy. One of the fundamentals that I need to observe when I’m trying to execute my defense strategy is to leave emotions out of the equation. If I become emotionally wrapped up in a case, and my thinking is affected, I might make mistakes in judgment that would not have been made if I looked at the case objectively. Like anything else, if you get angry it affects your decision-making process. If you get upset or sad, it affects your decision-making process. So, ideally, keeping an even keel is something to strive for.

 

When charged with a crime, you are presumed Innocent. The burden of proof lies with the state or the accuser.

People think that if they have any encounter with the police, they can talk their way out of it. They believe that they can reason with the police.

People have a right to have an attorney present and should take advantage of that right. As an American citizen, when charged with a crime, you are presumed innocent. The burden of proof lies with the state or the accuser. The burden is entirely on them. One of the formal instructions a judge will give to a jury at the end of a trial is that the defendant or the accused is not required to present any evidence on his behalf, and the fact that he has not presented any evidence on his behalf cannot be used against him.

What if they have a search warrant? 

You have a fundamental constitutional right to remain silent.

Because of television and movies, people think they have to make a statement when in fact it is one of the most fundamental, foundational principles of the constitution that you have a right to remain silent. You have a right not to present evidence on your behalf, and it cannot be used against you.

 

What you should do when contacted by the Police.

What if you get a call from a detective, and they want you to speak to them? Should you do it? What happens if the police call you, and they say, “You’re not under arrest, but we want to speak to you about something.” What should people do, and what does that mean?

Well, if you get a call from a detective, they are calling because it is a serious matter. They are so overwhelmed and so busy that the people who get phone calls or investigators stopping by their house are usually in some situation which is relatively serious, or should at least be treated seriously from the outside. This is because that is one of the tactics they use for getting people into a room where they can intimidate them or coerce them into incriminating themselves.

What they will do is tell you, “Hey, we’ve just got this little misunderstanding here. I am sure we can clear it up easily. Why don’t you come down to the station, and we’ll talk about this? We’ll clear this up, and we’ll get you on your way. We just want to get it off our books. We need to hear your side of the story, and we should be able to get rid of this.” They will put on this show even when they have no intention of getting rid of the case. Their goal is to get you in there to make some statement, whether incriminating or at least collaterally giving them some information that they can use to build a case against you.

The classic example would be, “Where were you last Friday night? We know you didn’t commit this crime on Friday night, but just tell us where you were.” And the person says to them, “Oh, I was out with my girlfriend at a movie,” lying to them for whatever reason. They would say, “Okay, that’s fine,” and continue with the conversation. Then they send out a detective or an investigator to go to speak to your girlfriend, and they ask her, “Hey, were you with your boyfriend last Friday night?” She says, “No, why? I was working, and I believe he was in Indiana or out of town.” They say, “Oh, no big deal. We just wanted to find out what your side of the story was. We’re trying to clear up this mess.”

Then, they charge you with the crime. When the case subsequently goes to trial, they say you lied about your whereabouts on the night of the crime. That, collaterally (not directly, but circumstantially), would indicate some evidence of guilt. That would indicate to most jurors that this guy has got something to hide. He lied about where he was. He probably was there on the night of the crime. So, it is always inadvisable to make any statement to the police, even if you are 100% innocent.

For example, a guy who was charged with a crime with the maximum penalty of life in prison got himself in trouble because he was a loudmouth. The police were doing an investigation of a heinous crime, and they talked to him and got all these details from him. He just kept talking about where he was and what he was doing. Then, they went through every detail he gave them about his whereabouts, and what he had been doing, and who he had spoken to, with a fine-tooth comb. It’s kind of like game of telephone where you whisper something in someone’s ear, and the next person whispers the same thing to the next person. By the time you get to the 10th person, the story has completely changed. They went out and talked to all these people and showed these inconsistencies, and he was found guilty of the crime because his stories did not match up.

 

Common Misconceptions People have when Approaching an Attorney.

What misconceptions do people have about being charged with a crime that you can dispel for us now? What do you hear when people come to your office or call you?

One of the most common things I hear is, “The police didn’t read me my rights.” This goes to show the difference between what you learn in law school and what you learn when you work in a courtroom. You see the difference when you start investigating things on your own on the streets, and you represent people and do an in-depth workup of a case from start to finish. You learn that the police, the Arkansas State Police and even some federal law enforcement agencies, almost never read people their rights.

By “rights” I mean your Miranda rights. An old case, Miranda vs. Arizona, is where the Supreme Court said that, upon arrest, every single US citizen must be advised that they have certain rights upon being arrested. Those rights are the right to remain silent, the right to be informed that anything they say and do can and will be used against them in a court of law, and that they have a right to have an attorney present (and if they are not wealthy enough to provide their own attorney, the government of the state or government of the United States will provide them with their own attorney).

The police almost never say something like that to someone if there is an ongoing investigation because then people will say, “I want my attorney here.” If they do advise an individual of their rights, they will breeze over it in a very cursory manner and say, “You don’t need an attorney for this. We are going to work this out. There is going to be no problem here. We’re going to speak to the prosecutor on your behalf. We are going to get the case dismissed. It is going to go a lot easier on you if you don’t request an attorney.” So, people think they didn’t read me my rights. The problem is that the police, for whatever reason, are willing to stretch the truth or almost outright lie.

Are the police allowed to lie to you? 

 The Police absolutely cannot lie to you under any circumstances. In those rare circumstances where you can demonstrate that the police have lied, you will be able to win a case almost every single time.

 Criminal Defense in the following Areas:

  • Traffic Violations
    • Driving on a Suspended Driver’s License
    • Speeding
    • Failure to Yield
  • DUI/DWI
  • Battery/Assault
  • Misdemeanors
  • Felonies