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Criminal Defense in the news

“Believe Survivors” vs. “Due Process”

[CW: discussions of sexual assault and questioning survivors’ veracity]

By Andy Piltser-Cowan and Jade Piltser-Cowan

This is a topic that we have been wanting to write on for a while.  It’s something Andy has grappled with over the years as an attorney of conscience whose job is sometimes to represent the accused, and other times the victim, and of course is also a member of society free to have his own opinions when not representing a client.

What do we mean when we say “believe women” or “believe survivors?”  Some folks say, “when you report a robbery, or a theft, or some other crime, nobody starts by asking how you fought back, what you were wearing, or whether you made it up.”  This is mostly true,  although if the case goes to trial, a defense attorney might ask any one or more of those things to try to poke holes.  
 
On the other hand, imagine that a member of the community comes to you and says they were mugged on the street last night, at knife-point, and relieved of their cell phone.  They have no injuries, because they yielded the phone when the attacker displayed a knife.  They are shaken up, and not sure what to do, but they can identify the assailant as a man they met at a cocktail party earlier in the night.  They had a few drinks at the party.  Our first reaction to this person is not “did you fight back?” Or “are you sure you remembered it right?” or “was it really robbery if they didn’t hurt you?  Did they actually pull the knife, or just say they had a knife?”  Or “maybe you just had a lot to drink and forgot what you did with your phone.”
 
The police identify the assailant based on the description.  He is carrying a knife and the victim’s phone.  It’s a 4″ folding knife, where the victim described a 6″ straight knife.  The victim described him as having a celtic knot tattoo on his neck, but it’s actually a Celtics shamrock.  When questioned, he says that he carries the knife for work, he found the phone on the street, and he was trying to get it back to its rightful owner as soon as he could get it charged up to turn it on and identify them.  He’s had a busy day, he says, and just didn’t have the chance.
 
Now I can tell you with near-absolute certainty, as a criminal attorney for ten years, that any police officer in Massachusetts would make an arrest based on the strength of that evidence.  They would not shrug and say “it’s a he said/she said.”  A judge would deny a motion to dismiss.  The case would go to trial, unless the defendant entered a guilty plea.  He would have an absolute right to say his piece before a jury of his peers, who would decide if he was guilty or not.  Would you consider this case difficult to resolve?  Would you question the victim’s veracity after learning the discrepancies in the story and the suspect’s excuse?  Most of us would not.  
 
“Believe survivors,” at least to us, does not mean that every allegation must be taken as categorically true and beyond question, or that an accused may not have the chance to say their piece and have it taken into account.  It means that somebody who comes to the community for support after being sexually assaulted should get at least the same baseline credence as the person above, who was mugged.  It’s not a presumption of guilt or a lack of openness to hear the other side, it’s a baseline willingness to treat somebody who has been sexually assaulted with the same dignity and respect as somebody who has suffered any other violation of their person or property.
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Criminal Defense student questions

Should I hire a specialist?

Last Sunday, I had a consultation call with a fellow who, as it turned out, needed to hire a criminal defense lawyer from another state.  After we figured that out, we spent about ten minutes talking about how to hire a lawyer.

One question that I haven’t discussed here is, “should I hire somebody who specializes in the particular crime that I’m charged with?”  For example, do you need a drug case lawyer, or a lawyer who handles internet crimes?  For the most part, the answer is “not really.”

Here is what you need in a criminal defense lawyer:

  1. You need a lawyer who is seriously focused on criminal defense as a primary practice area.  Many criminal defense lawyers practice in at least one other area of law, but you need somebody who isn’t just dabbling in criminal defense.  This is a specialty area of law and not something that somebody can do with just a law license and no specialized training.
  2. You need a lawyer who practices in the jurisdiction where you’re charged.  Because of my YouTube, I get a lot of calls asking me to take a case in Georgia or New Jersey or Minnesota.  This poses two problems.  First, I’m not licensed there, and second, I don’t know what I’m doing there.  A lot of criminal defense is about knowing how the fine points of local law and rules help your case.  Even if I could get special permission to appear out of state, I wouldn’t be as effective as I am in my home jurisdiction because I don’t know that state’s law or court rules.
  3. I may take some flak for this, but I don’t think you need somebody who is a specialist in the particular courthouse where you are charged.  Knowing all the personalities in the clerk’s office, the DA’s office, the judges, and the court staff can grease the wheels in some cases, but it can also lead to a familiarity that sometimes limits a lawyer’s willingness to aggressively represent their client and piss those people off.  (Defense strategies that fear pissing people off are occasionally appropriate but often cowardly.  It is a defense lawyer’s job to piss people off.  We get good results by making sure everybody knows that when we fight, it will hurt to be on the other side).  When I practice in an unfamiliar courthouse, I make a point of talking to people who know the place better than I do, to make sure that I get the inside scoop on who’s who.  And then I get things done.
  4. Related to the above, you need a lawyer who fights and tries cases.  What that will mean in terms of actual trial numbers varies a lot from one county and state to the next–sometimes from court to court.  But you need a lawyer who is trial-focused.  Even a lawyer who is trial-focused will still do a lot of pleas, but they will know which cases not to plead out, and what to do with those.
  5. You need a lawyer who is familiar with your type of case.  That doesn’t necessarily mean that they specialize in it (it’s hard enough to run a business specializing exclusively in criminal defense, and I don’t know anybody who specializes exclusively in a particular type of criminal case–with a couple of exceptions below).  It means that if you are charged with an internet crime, you want a lawyer who knows what to do with one of those — not somebody who is uncomfortable with the internet and only signed up for email because the Bar said they had to.
  6. If you’re charged in a white collar crime, you should consider a lawyer who specializes in white collar cases.  This is an exception to the general rule above.  If you’re charged with a homicide, you should hire a lawyer who has handled homicide cases and knows what to do with them.  Even then, you are likely to get a lawyer who also does other things.  And that’s okay.
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Criminal Defense Videos

Attorney Piltser Cowan at the SJC

For a real-life example of Attorney Piltser Cowan arguing a highly-technical, scientific legal issue to the State’s highest court, check out this video courtesy of Suffolk University.

 

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Criminal Defense Videos

Fight Everything: Find a Reason to Doubt

In this episode, Attorney Cowan talks about how to win hopeless cases by finding a reason to doubt!

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The second major goal of the fight everything strategy, is to find a defense. Let’s go back to this idea of the hopeless case. The case where, from the moment we walk in the door, it looks like the police have built an air tight, open and shut case against you. You need to find cracks in the armor. You need to find a little hole that we can put our defense crowbar into and then wedge it open to create a reasonable doubt that’ll win that not guilty verdict at trial. And you never know when you start investigating a case where that’s going to be.

Maybe when you start taking statements from witnesses, one of them says, “No, no, no. What it says in the police report is absolutely not what I said.” Maybe one of them says, “Well, yes I did say that. But I went back to the police three days later and I told them it was all a lie, and I took it back. You don’t have that report Attorney Cowan?” Now we’re moving to dismiss for prosecutorial misconduct for not giving us the report. We’re probably not gonna win that motion, but we’ll get the report that says the witness recanted. And we’ll be able to use that at trial to say, “Look, this person wants us to take their word for which of their previous statements was a lie. And is that proof beyond a reasonable doubt?” Maybe we find alternate hypotheses that explain the evidence in which you are innocent of the crime, that first come to us as a result of interviewing the witnesses and visiting the crime scene.

So, in these hopeless cases it’s important not to just accept the police version of the case. Because if you accept the police version of the case, you’ve already lost. And you’re wasting your time and money doing anything other than taking a plea offer. But, of course, you can’t afford to lose. You don’t want to take that plea offer. You don’t want to spend years of your life in prison. And so that’s why we’re going to do a thorough and complete investigation so that we can find a basis to defend your case.

One of the foundations of criminal law that all of this is based on, is the idea that as a defendant in the criminal justice system, you are innocent until proven guilty by the prosecutor beyond a reasonable doubt to a jury of your peers. When you walk into a court room charged with a crime, a lot of people will think, “Oh, you’re there for a reason. The police arrested you for some reason. You’re probably guilty of something.” Now our law says we’re not allowed to think like that. We have to look at you as criminal defendant and say, “There’s a completely innocent man. What’s he doing here? Mr. Prosecutor, what’s he doing here?” And the prosecutor has to bring in hard evidence to prove that you committed a crime. And if the jury of your peers that is deciding whether you’re innocent or guilty has any doubt that you committed this crime, they have to say you’re not guilty.

So, I often say that as a criminal defense attorney, my fundamental job is to sell doubt. When I was a law clerk in the District of Columbia, we had a jury instruction when the judge was explaining the concept of reasonable doubt, they would say, “A reasonable doubt is a doubt based on a reason.” And so in our closing arguments, we would summarize the holes in the prosecutor’s case. We would say, “This witness can’t remember what day of the week the crime happened on, and that’s a reason to doubt. This witness told three different stories, and wants us to take their word for it, and that’s a reason to doubt.” And so, when I fight everything one of the things that I’m doing is I am nitpicking the prosecutor’s case. I am looking under every stone to find a reason to doubt. Because if I can convince one out of twelve jurors that there is something that just doesn’t sit right about the evidence in your case, you walk home as an innocent person.

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Criminal Defense Videos

Fight Everything: When You Can’t Afford to Lose

In this episode, Attorney Cowan talks about how to win hopeless cases by fighting everything!

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The problem is that it’s very easy for the lawyer to start matching cases to patterns and say, “Well, the last five cases I had that were like this all ended the same way, so I assume this case will do the same thing that those five did.” And I’ve seen cases where lawyers assumed that a case was going to be a guilty plea, and then at the last minute their client said, “I can’t take this guilty plea,” the judge said, “That’s fine, we have jurors in the next room,” and the lawyer was kind of caught with their pants down, because they weren’t prepared for trial.

The strength of your case as the defendant rests entirely on your ability to force the case to trial. And if you’re not prepared to do that, then you have no bargaining power over any of the rest of it.

Hi, my name’s Andy Cowan. I’m a lawyer in Cambridge Massachusetts, this is part of our series on youtube on how to win a criminal case, and today we’re going to be talking about how to win a criminal case by fighting everything. This is perhaps what most people think of when they imagine a criminal defense. But it’s become a little bit of a lost art, and it’s not appropriate for every case. So I’m gonna talk about what cases we’ll use this strategy for, and how it works.

First of all, what do we mean by “fight everything”? Here’s what I mean. We leave no stone unturned. We interview every witness. I visit the scene of the alleged crime. I take photographs. I visit it at the time of day when the alleged crime occurred. I file motions for discovery. Motions for every little nook and cranny of the prosecutor’s case. And I will do everything imaginable to make sure that I am ready to take your case to trial on a moment’s notice, and that when the trial date does come that we are ready to put up the fight of a lifetime.

Primarily this strategy is one that you’ll employ in what I call the “hopeless cases”, and cases you can’t afford to lose. What I mean by that is the cases where you get the case and you look at the police report and your first reaction is, “Oh man, I’m sunk! This looks like such a strong case for the government, it looks like they have overwhelming evidence, and the plea offer is double digits in the state prison, I can’t take that, I’ve got a life to live!” You need a defense. And your defense in this case is going to at least start out as fight everything.

Now, when I say it’s a lost art there’s a couple of concerns that I often hear when I talk about this defense. One is, “Well, isn’t that just gonna aggravate the prosecutor? Don’t I need to, like, make a deal, and maybe make nice with the prosecutor so I get a good deal?” Look. If the plea offer is double digits in the state prison, or maybe your in district court and the plea offer is two and a half years in the house of corrections, that’s still years off your life. What are we worried about aggravating the prosecutor? They’re trying to put you in jail! They’re already not on your side.

And so I’m not particularly worried about staying on their good side. I’m worried about aggravating them so that they want to get rid of me. We’ll talk about how this works in a minute.

People also worry about will I aggravate the judge? And, what I have to say about that, is that I’ve talk to a lot of judges, and I’ve gotten to know a lot of judges over the course of my career. And with very few exceptions, judges want to go home at night and they want to be able to go to bed thinking that they made fair and correct decisions in court that day. And they feel much better about those decisions when they see a lawyer standing up and arguing for a client. In other words, they don’t know about what discussions you and I have had in the back room of my office. They don’t know why we’ve decided to file a motion, or not file a motion. How we’ve decided to plead or go to trial. All they know is what it is we’ve presented to them for decision that day. And so if a judge feels like, “Gee, I know that Mr. Cowan comes in here and fights everything all the time,” they’re going to feel much more confident that whatever decisions they make in that case, they have made with the full benefit of the strongest argument that could be made on your behalf. So I don’t worry about aggravating the judge or the prosecutor, I worry about protecting you, my client.

Now, I talked a minute ago about trying to wear down the prosecutor, so they want to get rid of me. And here’s what I mean by that, our criminal justice system takes less than two percent of its cases to trial. The overwhelming majority are disposed of by plea deals. And in cases where you do want a trial you can wait months, or even years, to get your day in court just due to congestion and delays in the court system. And what that means is even a small percentage increase in number of the cases that go to trial, say up to three percent, or four percent, would absolutely cripple the criminal justice system. And prosecutors would start having to make very hard choices about which cases they think are worth prosecuting.

This is an important safeguard of all of our liberty, because if prosecutors and police can pick anyone and charge them with any crime, knowing that there’s a very high likelihood that they’ll plead guilty, then they can. They can go after anyone, at any time, for almost any reason. And if we’re going to live in a free society, that means that there has to be some limit on the government’s ability to charge people with crimes and put them in jail.

Right now in the system that we have, the very best way that we have to impose that limitation, is to require prosecutors, police officers, judges and court staff, to give cases individualized attention. The way that we do that is by filing a lot of motions, by fighting your case, and by making it look like, “Yeah, no, really, we’re gonna go to trial, and we’re gonna tie this court up on this trial, for two, three days in district court, two, three weeks in superior court, and we are going to spend everybody’s time on this unless you give us a reason to do something else. Now maybe that reason is you, the prosecutor, come down on the plea offer until it’s something that we can accept. Maybe the original plea offer was two and a half years in the house of correction in district court, and we talk the prosecutor down to a suspended sentence, meaning that you don’t go to jail at all. And maybe that means that now you’re willing to consider a guilty plea in this case.

Or maybe you’re in a situation where you absolutely cannot afford to plead guilty, because you can’t have a conviction on your record. And in that situation, you’re not just threatening to go to trial, we’re gonna go to trial unless we can get that case dismissed. And if we lose the trial, we’re going to appeal. And if we win the appeal and we have a new trial, we’ll go to trial a second time. And if we lose the second trial, we’ll have a second appeal. And we’re not gonna stop buddy, because you can’t afford to lose this case. And you need an advocate who understands what that means. And who understands how to go the whole nine-yards with your case.

Categories
Criminal Defense Videos

Cops and Vampires: What to Do if You Have Been or Might Be Arrested

In Part 3 of the “How to Win a Criminal Case” series, Attorney Cowan discusses how to protect yourself in a high-stakes confrontation with law enforcement.

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Closed captioning available

Transcript:

If you’re watching this video because you’ve recently been arrested for a possession offense, or a drug distribution or trafficking offense, or for a gun charge, the two most important things for you to do right now are: Number one, don’t answer any questions from the police. If you already have that’s something your lawyer can work with, but don’t answer anymore. And if the police call you for questioning or they ask you questions, you just say, “I watched a video, and attorney Andy Cowan told me I’m not supposed to answer.” Put the blame on me.

Number two, you need a lawyer. If you can’t afford a lawyer you’ll get a court-appointed lawyer and most of the court-appointed lawyers in Massachusetts do excellent work. If you can afford a lawyer, there’s a lot of value in shopping around and finding a lawyer that you like. You want to find somebody that you have a good rapport with. You want to find somebody that when you sit down and talk to them about your case, they make you feel good about it. Even if they’re giving you bad news, you want to feel like you’re getting an honest appraisal from somebody you can trust. And I think it’s very important that there’s a lot of technically competent lawyers who would do very good work. You need to find somebody that is not only technically competent, but somebody that can relate to you and somebody that you can relate to. That you feel like you can have a good working relationship with. In a district court drug case you’re going to be working together for anywhere from three months to a year. In superior court cases it’s going to be one to three years on average. And again, it could be as much as six or seven years. So you need somebody that you’re going to be very comfortable with. And somebody that you’re comfortable talking about some of the more intimate aspects of your life with.

If you’re watching this video because you haven’t been arrested or charged, but you’re afraid you might be, I have the following advice for you. Never consent to a search. Police officers are very good at making it feel like it might be in your best interest, just this once, and it never is. Just repeat, “I don’t consent to any search.” Repeat that over and over again until the police either do it anyway, or let you go. Don’t ever talk to the police when they suspect you of a crime. Again, police are very good at applying social pressure to make it feel like you should talk. And you can put all the blame on me and say, “Attorney Cowan told me not to, and I’m going to follow his advice. Why don’t you give him a call officer?”

Number three, never let the police into your house. Cops and vampires can’t come into your house without permission. If you remember that, you will be much safer. If you think that you need to talk to the police about something, for example you’ve been the victim of a crime, step out of your house and talk to them on the front porch or in the hallway of your apartment building. Do not let the police into your house. Do not consent to search. And do not talk to the police when they suspect you of a crime.

If you need more personalized legal advice you’re always welcome to give me a call at: 617-749-2353. I look forward to hearing from you.

In Part 3 of the “How to Win a Criminal Case” series, Attorney Cowan discusses how to protect yourself in a high-stakes confrontation with law enforcement.

Listen – Audio Only:

Watch the Video:

Closed captioning available

Transcript:

If you’re watching this video because you’ve recently been arrested for a possession offense, or a drug distribution or trafficking offense, or for a gun charge, the two most important things for you to do right now are: Number one, don’t answer any questions from the police. If you already have that’s something your lawyer can work with, but don’t answer anymore. And if the police call you for questioning or they ask you questions, you just say, “I watched a video, and attorney Andy Cowan told me I’m not supposed to answer.” Put the blame on me.

Number two, you need a lawyer. If you can’t afford a lawyer you’ll get a court-appointed lawyer and most of the court-appointed lawyers in Massachusetts do excellent work. If you can afford a lawyer, there’s a lot of value in shopping around and finding a lawyer that you like. You want to find somebody that you have a good rapport with. You want to find somebody that when you sit down and talk to them about your case, they make you feel good about it. Even if they’re giving you bad news, you want to feel like you’re getting an honest appraisal from somebody you can trust. And I think it’s very important that there’s a lot of technically competent lawyers who would do very good work. You need to find somebody that is not only technically competent, but somebody that can relate to you and somebody that you can relate to. That you feel like you can have a good working relationship with. In a district court drug case you’re going to be working together for anywhere from three months to a year. In superior court cases it’s going to be one to three years on average. And again, it could be as much as six or seven years. So you need somebody that you’re going to be very comfortable with. And somebody that you’re comfortable talking about some of the more intimate aspects of your life with.

If you’re watching this video because you haven’t been arrested or charged, but you’re afraid you might be, I have the following advice for you. Never consent to a search. Police officers are very good at making it feel like it might be in your best interest, just this once, and it never is. Just repeat, “I don’t consent to any search.” Repeat that over and over again until the police either do it anyway, or let you go. Don’t ever talk to the police when they suspect you of a crime. Again, police are very good at applying social pressure to make it feel like you should talk. And you can put all the blame on me and say, “Attorney Cowan told me not to, and I’m going to follow his advice. Why don’t you give him a call officer?”

Number three, never let the police into your house. Cops and vampires can’t come into your house without permission. If you remember that, you will be much safer. If you think that you need to talk to the police about something, for example you’ve been the victim of a crime, step out of your house and talk to them on the front porch or in the hallway of your apartment building. Do not let the police into your house. Do not consent to search. And do not talk to the police when they suspect you of a crime.

If you need more personalized legal advice you’re always welcome to give me a call at: 617-749-2353. I look forward to hearing from you.

Categories
Criminal Defense Videos

How to Win Drug and Gun Cases Part 2: Substantive Defenses

In this episode, Attorney Cowan talks about how to win drug and gun cases by challenging whether the state can really prove its case.

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Transcript:

The second thing that we check in a drug or gun possession case, is whether the substance that you’re charged with possessing illegally is what the police say it is. This may seem self evident, but often it’s not. Even in a case where the client thinks it is. So for example, I’ve had cases where the client was charged with possessing heroin. And they said to me, “Attorney Cowan, I don’t know if it was heroin. I hoped it was. That’s why I bought it. But I was arrested right after. I never got to have any and I don’t know if it was fake.” And sometimes the results come back from the lab saying that it was fake.

In Massachusetts it’s a crime to sell fake drugs, but it’s not a crime to buy fake drugs. And so, if what you’re charged with possessing turns out not to be real, you’re off the hook. Likewise with a firearm. Often people carry around something that they believe to be a firearm, that they hope to be a firearm, but they don’t know if it works, because they’ve never fired it. And in Massachusetts, if it doesn’t go bang when you press the trigger, it’s not a firearm. And no matter how good it is for scaring people on the street, it’s not an illegal gun.

Number three, what’s the weight? If you’re charged with possessing marijuana it has to be over an ounce to be a crime. If you’re charged with trafficking in marijuana, cocaine, cocaine, fentanyl, or some other drug, the weight of the substance determines whether you’re charged with trafficking versus possession. And it determines what level of that crime you’re charged with. More weight usually equals more jail time. Usually the police report will contain a weight listed on the report. But that weight includes all the baggies, the packaging. Most drugs that are trafficked in Massachusetts are very lightweight. Heroine, cocaine, marijuana, these are not heavy things. And so the weight of the packaging is actually significant compared to the weight of the substance. Especially in small amount cases. Legally, you’re only charged with what the weight of the substance is, not the weight of the packaging. And in close cases we’ll hire our own expert, an analytical chemist to come in and reweigh those drugs without the packaging, just like they’re supposed to do at the state lab. And sometimes that can bring you back under that threshold where it’s either not a crime, or it’s a less serious crime.

Finally, another useful way to approach defending a drug case is to question the fact of whether you actually possessed the substance, or whether you were involved in the distribution that you’re charged with. In a possession case, it’s not uncommon at all to see three or four people in a car, the bag of drugs is found in the center console, under the front seat, or in the glove box. But everyone in the car is charged with possessing it. And often, because of the weight, it’s possession with intent to distribute.

Under the law however, you’re only guilty of that crime if you had knowledge that the substance was there, if you knew that it was an illegal drug, and if you had the intent to possess it, and the ability to control it. So even if you know that your buddy is carrying, whether it’s a drug or a gun, you can’t legally be charged with it, unless you had both the ability and the intent to control that object or substance. And that’s something that the police have to prove against you beyond a reasonable doubt. Just being in the car isn’t enough. And we absolutely try cases and win cases on that basis.

Likewise in a distribution case, it’s very common for the police to arrest and charge not only the person that they actually caught or suspected dealing the drugs, but everybody else who lives in the same house, is a member of the same family, or anybody that they find in the general vicinity of that illegal drug transaction. But again, that’s not enough. They have to prove that you, as the person charged with distribution, that you knowingly and intentionally participated in a crime. Not just that you knew it was happening around you. Not just that you didn’t stop it. You’re not obligated to stop it. They have to prove that you had something to do with it.

Just last year I had a case where my client was arrested, charged, indicted, and put on trial for no greater crime than being married to a drug dealer. And after seven years of pretrial maneuvering, and after a whole week of trial in superior court, we got a judge to throw out those charges for exactly that reason. That even at the end of the trial the police had not established any proof that she was involved in her husband’s illegal drug dealing.

Categories
Criminal Defense Videos

How to Win Drug And Gun Cases Part 1: Put the Police on Trial

In this episode, Attorney Cowan talks about how to win drug and gun cases by putting the police on trial in a motion to suppress.

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Transcript:

I think reasonable people can differ about what sort of criminal justice system we should have, what sort of prison system we should have, but one thing that I think very clear is that, if we’re going to have a system of laws, and if we’re going to punish people for not following those laws, then by gum, the people in charge of enforcing those laws ought to follow the laws about their behavior. In drug and gun cases, these are the very few cases where we can hold the police accountable, and get a judge to impose some actual consequences in the form of dismissing a case where the police didn’t follow the rules.

Hi, I’m Andy Cowan. I’m a criminal defense lawyer based in Cambridge Massachusetts, and today we’re going to be talking about how to defend a drug case in Massachusetts. This is something that I do a lot, and it applies to gun cases as well. Basically any time that you’re charged with possessing something illegal that the police found on your person, in your car, or that’s being otherwise attributed to you in some way. Most commonly this is drugs and guns.

Often people come to me with these cases thinking that they have no defense, they’ll say, “I was caught red-handed. The drugs were in my pocket. They were in the glovebox of my car. I have no defense, but I can’t plead, because there’s a mandatory jail sentence. What do I do?” What people don’t know is that there usually is a defense. I’ve spent a lot of my career focusing on this question of how to defend a drug case. And how to defend drug cases when somebody really is caught with the substance in their possession.

The first step is always to put the police on trial. This is what I love about drug and gun possession cases. You get to file a motion called a motion to suppress. And in that motion we have a little mini trial, that’s not about whether you’re guilty or not guilty of possession, or distribution, or trafficking, or whatever you’re charged with, instead what we’re trying in the motion to suppress is the question of whether the police are guilty or not guilty of violating your constitutional rights. And if the judge agrees with us that the police violated your constitutional rights, then anything they found as a result is suppressed or thrown out of the case.

There’s a number of different issues you can raise in a motion to suppress. Did the police have a constitutionally adequate bases to stop you? Did they have a valid basis to search your car? Tow your car? Bring a dog to sniff your car? Any time that the police do something that either stops you from moving freely about your life, or that searches you, or searches one of your possessions, or searches an area that you’re associated with, that is what we call a constitutional moment where the police have to be able to justify why they did what they did. And if they can’t, you win.

So for example, I had a case back in 2010 where the police officer claimed that the reason he was allowed to remove my client from a car by the side of the road after stopping him for speeding, was that he saw a little baggie of marijuana sticking out of the client’s pant’s pocket. But I spent an hour asking that officer questions. What type of car was it? How tall was this car? How tall are you? Where was your eye-level on the driver of this car? What was the weather like? What was the lighting like? And by the time we were done it was very clear to everybody in the room that this officer could only have seen what he claims to have seen, if he had x-ray vision. That case ended with the judge saying, “Officer, I don’t believe you.” And she suppressed the heroin that my client was charged with trafficking in, because she couldn’t believe the police officer about why he’d stopped and searched the guy.

That is a very clear message from the court to the people, to say, “Look, we have these crimes where, you didn’t actually hurt anybody, you just did something that society has said should be illegal. But the way the police caught you, that was illegal too. So we’re gonna call it a wash. We’re gonna throw out the charges, and everybody goes home.” And I love being able to get that king of justice for my clients.

Categories
Criminal Defense

Should I have a lawyer at the show-cause hearing?

One of the most common questions that I get about show-cause hearings is whether it is a good idea to bring a lawyer.  Many people think that bringing a lawyer will make them “look guilty” or that they can simply explain that they are innocent and do not need a lawyer.  Both of these common beliefs are grave errors that can set you up for a difficult and expensive criminal case.

To review, a show-cause hearing (also called a clerk’s hearing) is an informal hearing to determine whether you will be charged with a crime.  You can read more about show cause hearings here.

If I’m innocent, why do I need a lawyer?

You know that you are innocent, but nobody else knows that.  And they don’t know you.  You are probably used to going through life being able to be believed when you say something is true, but court is different.  If you got a summons to a show cause hearing, somebody is accusing you of a crime.  That person might be a police officer, or a fellow member of the community.  They are going to come into court and tell a story about what a bad, guilty person you are, and why they believe that you did the bad thing.  Your denial is a good start, but it’s not enough.  The clerk-magistrate doesn’t know either of you, and doesn’t know whom to believe.  A good lawyer will help show the clerk why they should take your side.  That might involve finding and preparing independent witnesses or hard evidence.  It might involve preparing difficult questions to ask the complaining witness, to show why they are mistaken or lying.  And it might involve making legal arguments that you never imagined–for example, if there is case law that says the type of conduct you are accused of does not violate the statute in question.  A lawyer’s first job is to spot issues, dispassionately identify the strengths and weaknesses of each side’s case, and help you decide what your most successful strategy will be.  Often the most successful strategy is one that avoids the parts of the case that carry the most emotional weight for you, and focuses on a weakness in the other side’s case.

Second, innocent people are not always very good at explaining their innocence.  Many people want to argue that they are a good person who has never done this sort of thing before, that they have no motive to commit the bad act, and that they would have to be utterly stupid to commit the crime the way it is described.  These arguments often fall flat because they do not directly respond to the evidence against you–and because everybody in the criminal justice system has seen hundreds of cases where first offenders committed crimes with no apparent motive, and did so stupidly!

The bottom line: you can protest your innocence to somebody who already wants to believe you, but you need a lawyer to show your innocence to somebody who might not want to believe you.

Will I look guilty if I have a lawyer?

This is a very common concern, but it is misplaced.  Court staff, including clerks and judges, expect that anybody who can afford to have a lawyer will do so.  Lawyers help you be better prepared for the hearing, present your best defense, and understand what is happening.  Most clerk-magistrates and judges also genuinely want to get to the truth and do the right thing.  They know that people without lawyers do not necessarily know how to present their cases well, and they can feel more confident in their decisions (one way or the other) if they know the defendant was represented by a strong lawyer who put on their best case.

If anything, having a lawyer works in your favor, all things being equal.  The magistrate knows that you had to spend money (or maybe call in a favor) to get a lawyer.  If they think you may be guilty of some minor misbehavior, they know that the cost of the lawyer means you are not “getting off scot-free” if you had to hire a lawyer.

The cost of hiring a lawyer to defend yourself at the show-cause hearing is 10%-20% of the cost of hiring a lawyer to defend you at trial if the complaint issues, and most lawyers will credit what you paid for the show-cause towards your fees for the criminal case, if you lose.  This makes hiring a lawyer for the show-cause a very good investment.  If you have an upcoming show-cause hearing, give us a call at 617-749-2353 or click “book now” to schedule your free consultation!

Categories
Criminal Defense

What Happens at a Show Cause Hearing

Many clients come to me for the first time having received a summons for a “show cause hearing,” also called a “clerk’s hearing” or a “magistrate’s hearing.”  Confusion abounds regarding these hearings, and there is a great deal of misinformation in circulation as well.  This post aims to give you a solid grounding in what to expect at the hearing.

A show cause hearing is a short hearing to determine whether a person should be charged with a crime.  Most criminal charges are issued before the accused has a chance to object, however, Massachusetts provides the show cause hearing as an alternate process that gives the accused notice of the charges and the opportunity to argue against them before the charge ever issues.  This is particularly important because a case that is resolved at the clerk’s hearing never goes on your criminal record, and the ability to resolve a case at this level can save a great deal of time, anguish, and legal fees. If you have received a summons to a show cause hearing, you have the right to bring a lawyer that you hire.  However, there is no right to appointed counsel at this stage, so if you cannot afford a lawyer or choose not to hire one, you will be on your own.

When hiring a lawyer for a show cause hearing, the most important thing is to hire an experienced defense lawyer who feels like a good match for you, and is somebody you can work with.  Talk to the lawyer before you hire them about how they will handle your case, and make sure that they plan to pursue a strategy that you can get on board with.  When lawyers and clients are unable to persuade each other to see the case their way, the client may well be served by a different lawyer.  If the lawyer you want to hire is not available for the scheduled hearing, most courts will allow the hearing to be rescheduled for a day when your lawyer is available.

I will discuss the show cause hearing in three sections.  In “the legal standard” I will discuss what the law says is supposed to happen at a show cause hearing.  In “informal resolutions,” I will discuss the settlements that often come out of these hearings, even though they are not part of the legal framework.  In “nuts and bolts,” I will discuss the look and feel of the hearing–who is present, where it is held, and so on.

The Legal Standard

The legal standard at a show cause hearing is called “probable cause.”  The person who filed the complaint application (usually a detective) must show the clerk-magistrate enough information that a reasonably cautious person would believe that the accused committed the alleged crime.  The technical rules of evidence do not apply, and hearsay is allowed.  This is a low bar, but it still requires some evidence (even a person’s say-so will do) that matches the technical definition of the crime.  Consider the following two statements:

“Before I will lend you my car, I want to know that you are a safe driver.  I don’t need a lot of evidence, but I need some reason to believe it.”

“Before I will lend you my car, I want to know that the sky is purple and the moon is actually, literally made of green cheese.  I don’t need a lot of evidence, but I need some reason to believe it.”

Here, the burden of proof is the same—and it’s a low burden.  In the first example, the driver might say “well, I’ll tell you what a safe driver I am, and you should believe me because you know I’m trustworthy.”  They might show their driving record, or they might volunteer to do a test-drive.  Any of these would do in a show-cause hearing.  In the second example, however, we know that the driver is very unlikely to end up with the car.  Even if she swears that the sky is purple and the moon is made of actual green cheese, the magistrate is not very likely to accept her word because it is such an improbable idea.  Extraordinary claims require extraordinary proof. 

The low burden does, however, influence strategy at a show cause hearing.  One can view every statement and inference in the case against you as something that is open to contest.  However, contesting facts is rarely fruitful at a show cause hearing—the magistrate is not supposed to be resolving questions of fact, but rather deciding what to do with a particular set of allegations—and they will do it inside of about ten minutes.  The only time that facts should be contested at a show cause hearing is if there is concrete proof that a key allegation isn’t true.  For example, “I couldn’t have committed this crime, because I have proof that I was in Montana the week before, and I say that I was still in Montana at the time of the crime” may be an acceptable alibi for trial, but would likely fail at a show cause hearing.  “I couldn’t have committed this crime because I was in the hospital in a coma at the time, so the person who says he saw me there must be mistaken,” is the level of absolute proof that is needed to contradict a fact at a show cause.  Rather, if a show cause hearing is to be contested,  it is nearly always contested on the inferences or the legal standards.  In some cases, there is no defense to be made at the show cause hearing, but it can still be a valuable opportunity to learn about the state’s case in detail at a very early stage.

Technically, if the magistrate believes that the complainant has produced enough evidence, they “find probable cause” and issue a document called a “complaint.”  The complaint formally charges the accused with the crime, and the case will proceed to arraignment.  If the magistrate does not see the proof, they “find no probable cause.”  The case ends, the file is destroyed, and there is no record that it ever happened (except, perhaps, in the detective’s and defendant’s own files)

In practice, however, there is often an additional step–if the clerk-magistrate believes there may be some substance to the allegations, but thinks it is a close call or just not very serious, there may be room for an informal resolution.

Informal Resolutions

An informal resolution is a settlement mediated by the clerk-magistrate at the show-cause hearing that allows the suspect to avoid formal criminal charges, while acknowledging that the complaint may have some legitimacy.  The terms vary from one case to the next, but may include:

  • Staying out of trouble for a set period of time, often 6 months or a year;
  • Paying money to the court or restitution to the alleged victim;
  • Not contacting the alleged victim;
  • Any other terms that the parties agree to.

Both the suspect and the complainant must agree to the settlement.  If either party objects, the clerk-magistrate is required to determine probable cause and either issue the complaint or not.  It is important to note that the complainant in most cases is the police officer who filed the case, not the alleged victim.  However, the police officer will usually take the alleged victim’s feelings into account in determining whether to settle the case at the show-cause level.

In my experience, most show cause hearings are settled at this level.  Even if probable cause is clearly present, the magistrate may want to settle the case because it is not very serious.  Even if probable cause is clearly absent, the magistrate may want to appease the complainant and/or alleged victim, and not create the appearance of telling them that their concerns are invalid.

Nuts and Bolts

Arrive early to the show-cause hearing.  Make sure to leave time to get stuck in traffic (or delayed on the T), have trouble parking, and get held up at security and still be early.  Bring a copy of your summons to court with you.  Dress in business attire.  When you arrive at the courthouse, check in at the clerk-magistrate’s office and make sure you know where to go.  Some courts hold show cause hearings in courtrooms, other use hearing rooms or conference rooms.  If you have hired a lawyer, make sure that you and your lawyer have agreed on where and when to meet at the courthouse.

When the hearing starts, you will likely be in a room with your lawyer (if you have one), the police officer who filed the case, and the magistrate.  If there is an alleged victim, they might or might not be present.  Some courts hold the hearings in a large room, and other people who have hearings that day might be present.  Newton District Court is the only court where I have personally seen it done this way–private hearings are more common.  The hearing will likely not be “on the record,” but either side my ask the clerk-magistrate for permission to make their own recording.

At the beginning of the hearing, the clerk-magistrate will swear in the detective, the defendant, and any witnesses.  Even if you do not plan to testify, they will still swear you in.  The clerk-magistrate will ask the detective (or citizen complainant) to summarize the facts of the case, and to present any witnesses or evidence.  This is usually a brief, informal summary of the case, not a formal trial-type presentation.  The defendant has a limited right to cross-examine the witnesses.  The clerk-magistrate will then ask the defendant if s/he wants to say anything or present any evidence.  The defense can make factual statements, legal arguments, or both.  The magistrate may have questions for either side.  Once the evidence is closed, the magistrate will announce his or her decision.  If the magistrate asks the defendant to make a payment as part of a settlement, the timing of the payment should be discussed.  In Belchertown District Court, for example, immediate payment is usually expected unless other terms are discussed.  If the clerk-magistrate decides to issue a criminal complaint, the court may ask the defense lawyer to suggest a date for arraignment, or they may simply send notice out by mail.  In the Brighton and Roxbury divisions of the Boston Municipal Court, arraignments are done immediately after the show-cause hearing to save everybody a trip back to court.

If you have a show-cause hearing coming up and need to hire counsel, give us a call at 617-749-2353.  We’d love to hear from you!