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.
in the news student questions

Lying Witnesses and Other Questions of Truth in the Courtroom

As the events in Ferguson unfolded, students from my MIT’s Splash class Know Your Rights continued to email me questions regarding the behavior of the DA running the Grand Jury, prompting this reply.

Those of you following Ferguson may have noted the news last week that the DA admitted that he presented witnesses to the Grand Jury whom he knew were lying. This was particularly interesting to lawyers and people who follow legal news because Missouri, like most other states, has a rule against an attorney presenting evidence in court that the attorney knows to be false.

On that note, I present the following questions for you to chew on. As usual, if you think that any of my questions have easy or obvious answers, you have missed an important point and should either think about them some more, or find somebody who disagrees with you to have an interesting conversation with.

Many of these questions have answers that can be looked up in law books or rule books, but that doesn’t mean that they are the “right” answer or the “best answer.” They are simply current law, and since we live in a democracy, we can change the law! Even if we can’t change a law, we can also grumble about it and philosophize about it and argue that it should be changed!

1) When we say that an attorney can’t present evidence that the attorney knows to be false, what do we mean by “knows?”

Should we define that really strictly to only include evidence that the attorney could prove false beyond a reasonable doubt? What about evidence that the attorney thinks is probably false, but can’t prove is false? What about evidence that the attorney can suggest is probably false, but not beyond a reasonable doubt?

2) Short of a Bob McCullough-type “I knew they were lying” confession, how are we ever going to prove that a lawyer knew the witness was lying?

The case I studied in law school involved a lawyer who was actually with a witness in place A, when the witness testified to have seen the defendant in place B (not committing the crime, which happened in place C). That seems to be about as unusual as the McCullough confession. Should we be spending a lot of time on rules that only apply in weird and unusual circumstances?

3) What happens when a client tell the lawyer a particular version of the facts, and then changes the story later on in the representation?

The lawyer has to know that at least one version is false. The lawyer may not know which one is true or false. Can the lawyer call the client as a witness? What if the client changed their story in response to the lawyer telling them that the first version wouldn’t win the case? If that’s enough for the lawyer to bar the client from testifying, aren’t we encouraging a “don’t ask/don’t tell” sort of gamesmanship between attorney and client?

4) Who decides whether the lawyer knew the evidence was false, and how sure do they have to be, before they can punish the lawyer?

5) Our adversarial system depends on having attorneys muster the best evidence they can to zealously fight for a position or result, and other attorneys zealously attacking that evidence and mustering counter-evidence to zealously fight for the other result.

Is this counterbalancing undermined when an advocate withholds evidence for fear of being disciplined if it turns out to be wrong? Can’t the adversarial system handle false evidence by relying on the other lawyer to prove it false?

6) Normally, attorneys are supposed to be the best possible mouthpiece for the client, not the one who decides what evidence to believe and what weight to give it. Judges and juries do that, after hearing from both sides.

What does it do to the attorney-client relationship when we put the attorney in the position of making this kind of decision before offering evidence to the tribunal? How would you feel if your lawyer refused to argue your evidence because he or she didn’t believe it? What if your evidence was true, and the lawyer was wrong?

7) In a criminal case, the defendant has an absolute right to testify in his or her own defense. This is one of the most absolutely true things we have in our legal system.

What happens if the defendant in a criminal case wants to testify in a way that the lawyer knows to be false? Can the lawyer stop the client from testifying? If so, how does that interplay with the rule that the defendant has an absolute right to testify? If not, how does that interplay with the rule that the lawyer can’t offer false evidence? If the client is allowed to give the false testimony, can the lawyer participate by asking the client questions on the witness stand? Can the lawyer argue to the jury that they should believe the client? If the client can testify, but the lawyer can’t ask the jury to believe it, doesn’t that put the whole defense in a weird, awkward position with the jury?

Comments are open for discussion below.

(Originally written on 12/22/2014.)

in the news student questions

Grand Juries, Mike Brown, and Eric Garner: Questions from Students

Every November at MIT’s Splash program I teach a class called Know Your Rights.  The class covers the fine points of the police-citizen interaction and teaches students what to do and what to expect if they encounter a police officer at home, at school, on the street, or in a car.  I always invite my students to contact me if they have legal questions later.

This year, I have been inundated with excellent questions concerning the deaths of Mike Brown and Eric Garner, and some of the related legal principles.

I will try to answer three of those questions here.

First, what is the difference between a trial and an indictment? Or between a Grand Jury and a trial jury?

Second, what do I think about Ferguson, the death of Mike Brown, and the death of Eric Garner?

Third, was it lawful for the NYPD to touch Eric Garner without his consent, given that he did not have a weapon and was not assaulting the police?

Function of the Grand Jury

A grand jury is not like a trial jury. They do not hear a contested case with evidence from both sides, and they do not decide whether the Defendant is guilty or not guilty.

A Grand Jury is a secret proceeding controlled by a prosecutor, without a judge or a defense lawyer. They hear evidence selected by the prosecutor, and decide whether or not there is probable cause to charge the Defendant with a crime.

If the Grand Jury decides that there is probable cause to issue a charge, that decision (and the corresponding charge) is called an “indictment” or a “true bill.” If they decide that there is no probable cause, the decision is called a “no bill.”

Grand Jury procedure differs a lot by state, but in many states an indictment is required to charge a person with a felony (such as murder or manslaughter). If you want to know more about how they work (and how they don’t), I recommend the following articles:

The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich, by Pope Hat (this is a hilarious law blog that I recommend in general).

England Abolished Grand Juries Decades Ago Because They Didn’t Work from Public Radio International.

On Ferguson, Mike Brown, and Eric Garner

I am not going to tell you what I personally think of Ferguson, or Eric Garner, or any of the rest. I will give you a few articles to read and a few questions to think about. If you think that you have come to an easy answer to any of these questions, I recommend that you discuss it with a friend or family member whom you are comfortable disagreeing with, and see what they think.

Ferguson and the Cult of Compliance by Professor David Perry.

Being a Cop Showed Me Just How Racist and Violent the Police Are. by Reddit Hudson.

It’s Past the Point of No Return, a New York Magazine interview with an NYPD officer.

Protest in a Liberal Democracy by Professor Brian Martin.

The Parable of the Polygons by Vi Hart and Nicky Caes.

Questions to consider and discuss:

  1. What rule should we teach police officers that they should use to determine whether they are allowed to use deadly force in a particular situation? Keep in mind that the rule should be easy to apply in a split second, without consulting a book or a superior officer.
    • Should the police ever be allowed to use deadly force to apprehend a fleeing suspect? Does it depend on what the person is suspected of?
    • How much danger does an officer need to be in before they can use deadly force in self-defense? Should they be required to try retreating or de-escalating before they use force?
  2. Okay, so you’ve got a rule. Now, there will be situations where an officer used deadly force, and people disagree about whether it was authorized or not. In fact, people even disagree about what happened. And there will be circumstances where there are honest mistakes by officers who really thought somebody was pointing a gun at them, when that person really wasn’t. How sure do we have to be, before we will agree that criminally prosecuting the officer (that is, putting them in jail for a while, branding them as a felon for life, and never letting them be a police officer again) is the right thing to do?
    • Who decides? A prosecutor, a judge, or a jury? Should they hear from both sides first? Who will represent the pro-prosecution side? Will it be a prosecutor from that officer’s jurisdiction, who might have prosecuted cases that the officer was involved in?
    • Should there be circumstances where the officer loses his or her job, or gets sued for money but doesn’t get criminally prosecuted? Where do you draw the line?
    • If the officer gets sued for money, does the department pay? (The current practice is, almost always). If so, should there be other consequences for the individual officer?
    • The government gave these people weapons and told them that sometimes it’s okay to use force. Under what circumstances might the government acknowledge that a use of force shouldn’t have happened, and take responsibility for it? What will that responsibility look like? An apology? A cash payment? Should there be circumstances where the government takes responsibility, but the individual officer isn’t punished?
    • How will your rule impact people’s willingness to be police officers in the first place?
    • How will your rule impact society’s ability to feel safe with its police officers?

On Eric Garner and the Current Laws About Use of Force

The third question was whether it was legal for the officers to put their hands on Eric Garner at all, since he wasn’t attacking anybody and didn’t have a weapon.

It appears that New York makes it a crime to sell loose, untaxed cigarettes, and that Officer Pantaleo said he was trying to arrest Garner for this crime. You might ask yourself whether selling untaxed cigarettes should be something you get arrested for at all, rather than just being ticketed or summonsed. But in New York, right now, as far as I know, you can get arrested for it.

Usually, officers are allowed to use reasonable force to arrest somebody and to overcome that person’s resistance. What is “reasonable” depends on the circumstances. Lethal force is not usually considered “reasonable.”

Another question for you to consider is when the police should give up. The “cult of compliance” article above talks about a police culture of increasing the level of force until they win, but many US police departments have historically had laws that limit their escalation. For example, many police departments will not continue a high-speed car chase unless the person they are chasing is believed to be dangerous, because the chase itself is dangerous.

Ask yourselves and discuss: what rule should limit police use of force? When should they just give up, and mark the person as wanted? Does it depend on what the person is suspected of? How do we formulate a rule that can be quickly applied in the field?

The relevant language on chokeholds is:

Members of the New York City Police Department will NOT use chokeholds. A chokehold shall include, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air.

Several commentators from law enforcement have argued that the “take down” maneuver used to arrest Garner was not a choke hold at all.  You can read one of the more coherent arguments on that point here.

As you’ll see in the use of force manual, there is very little commentary on specific tactics that are allowed or disallowed.  However, there is a provision that says,

Whenever possible, members should make every effort to avoid tactics, such as sitting or standing on a subject’s chest, which may result in chest compression, thereby reducing the subject’s ability to breathe.

In general, the rule is that the use of force must be ‘reasonable’ and that non-deadly force should be used when possible.  Of course, telling police officers that a judge or supervisor will decide later whether their use of force was ‘reasonable’ gives them zero guidance as to what they should do or not do in the field.

The question brings up an important point about what it means to say that something is “legal” or “illegal.”  Usually we do not think of breaking rules at your job as “illegal,” even if you work for the government. And when you ask whether something is illegal, you are actually asking a few questions.  Is there a law that says it’s not okay to do this thing?  Is that a criminal law that imposes a jail sentence or fine?  If not, what happens to people who break the law?  Will a police officer arrest a person for doing this thing, even if there isn’t a specific law about it?  Will a judge uphold such an arrest?  Will a jury convict the person arrested of the crime that the police charged them with?  Will an appeals court say that the conviction was valid?

Comments are open for discussion below.