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.

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.

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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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.

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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.

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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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.

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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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.

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