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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.

Categories
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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Watch the Video:

Closed captioning available

Transcript:

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.