The Balance of Power

As promised, this week I want to talk about the balance of power in a criminal prosecution. To do that we will start with a fictional criminal offense and an allegation made that you dear reader have committed it. The scale at this time is fully tipped in favor of the prosecution side of the balance. The government has the resources and the manpower to conduct the investigation of the alleged offense. You, on the other hand, don’t know the law, the process or the procedure. The case is assigned to some investigator, could be a detective or and agent, if federal, and he will come “talk” to you. The scale remains buried against you. However, you have read my earlier posts and realize that, even though you are not guilty, it is in your interests to invoke your 5th and 6th Amendment rights. The investigator, is disgruntled and grouses about you wanting a lawyer, but you stand your ground. The scale moves slightly in your direction. The investigator talks to the prosecutor, this can be a district attorney or a U.S. Attorney.

Here the process is a little different depending on whether it is state or federal. In either situation the balance is solidly against you. Charges are filed largely at the discretion of the prosecutor. This person often has little to no information about the evidence of the case and is going strictly on the word of the investigator that it is a prosecutable case. In a federal case, it is taken to the grand jury where the assistant United States attorney presents his side of the case to the grand jurors who then return an indictment. There is an old saw which states, “Any halfway competent prosecutor can indict a ham sandwich.”

While an arrest could occur earlier, at this point the arrest is inevitable. Now you must have a lawyer. If you had retained counsel after the first law enforcement encounter you might be in a better position than if you merely invoked your rights but took no further action.

If you are indicted then your next scheduled court dates will be the arraignment and the trial. If charged by information in state court you have an initial appearance and subsequently a preliminary hearing. As a legal matter the preliminary hearing is the first opportunity to test the state’s evidence in your case and have it dismissed. In practice, however, cases are rarely dismissed at preliminary hearing. Indeed, the best you can hope for at this stage is gaining some additional insight into the prosecution’s case which will be helpful later. The burden of proof at this point is, “Probable Cause” which is very low and easily met by the prosecution. You have now been the “Defendant” in a criminal prosecution for several weeks and the strain and stress on you are taking their toll.

You want this over and are considering doing whatever it takes to end it. You wonder what kind plea you can enter to stop the madness and get on with your life. You did not do what you are charged with but you feel like you cannot go on with the defense. Then you are told this case has a mandatory minimum sentence which means any plea will require you to go to prison. Or you are told the prosecutor wants “time to do” which also means prison. Or the judge doesn’t like probation so ……. In the end, you realize that your only option is to continue to fight, which in itself helps energize your spirit.

I won’t go into “motion practice” because it is too dry and complicated to explain in a fictional case. But let’s assume you filed several motions and the court granted some and denied some. The result being that you are in a little better position than where you started. The scale moves again in your direction.

Finally you are at trial. Now the scale moves fully to your side of the balance. Now the prosecution must prove your guilt to a jury unanimously beyond a reasonable doubt.

Here is where your fellow citizens come into the picture. For the system to work as it is designed and intended, they must perform their duty fully and unconditionally. These jurors are not there to validate the prosecution’s case. If they take their job seriously, they stand between you and the power of the government to take away your freedom and will not let that happen lightly. Each criminal offense is composed of elements and the jury must find that each of those elements was committed beyond a reasonable doubt before you may be found guilty. As the defendant you have no burden of proof. The entire weight is on the prosecution and you do not have to counter any of their evidence with evidence of your own in order to be found not guilty. You are cloaked with the presumption of innocence, unless (not until) the jury finds all of the elements of the offense and thereby you guilty beyond a reasonable doubt.

You started this journey on the short end of the balance but at trial you have the full weight of the presumptions and the burdens on your side. I have tried many cases where we put on no defense evidence. Where the defendant did not testify. The jury found them not guilty because the government’s evidence was not sufficient, it was not beyond a reasonable doubt.

How TV Courtrooms Influence Public Perception

Television does a reasonably good job of entertaining us with crime/drama and lawyer (mostly prosecutor) shows. But it is a poor educator of how the system actually works.

There is one producer who decided some 20 plus years ago to make the prosecution of cases the “go to” format for lawyer shows. Gone were the days of Perry Mason, Owen Marshall and The Defenders. From the early 1990’s on the only good lawyers were prosecutors. While television may not be a good educator, it can frequently be a formidable influencer. If the only defendants shown are universally guilty then only one perspective is being depicted. This “conditioning” to believe the television portrayal of the system as reality results in a belief that all who are charged must by inference be guilty in real life. To be sure many people charged are, in fact, guilty. But be just as sure that not all people who are charged are guilty. This, to borrow from William Shakespeare, is the rub. We have recently been inundated with calls for believing “a person is innocent until proven guilty”. As a colleague recently noted that is not the correct admonition. Actually, it should be “presumed innocent unless proven guilty beyond a reasonable doubt”.

The depiction of criminal defense lawyers today is less than accurate also. In the Perry Mason, and others, day such people were depicted as performing a valuable service in protection of the liberty and rights of the accused. Today, the general depiction is much less noble and certainly a barrier to the prosecutor’s goal of gaining a conviction. The Innocence Project reports more than 360 DNA exonerations, that is people convicted but were arguably factually innocent. How does this happen? What of the “proof beyond a reasonable doubt?” Has our society so conditioned the public to belief the prosecutor is good and the defense is bad; that juries are willing to find innocent people guilty even if the proof is less than necessary? I have asked jurors during selection, how they would vote at that very moment. The most common response is they don’t know because they have not heard any evidence. Yet, it is because they have not heard any evidence that the only vote must be Not Guilty, this is the essence of the “presumption of innocence”. How can a principle so clear in its concept and so direct in its assertion be so difficult to apply in real life? People’s lives, their families and their freedom are destroyed because of a failure to understand these fundamental aspects of criminal prosecutions. Next time I will discuss the balance of power in a criminal prosecution.

Until then, as always: These are your rights, use them or lose them.

Exercise Your Rights Pt 2

I know that I may sound like a broken record, but a new opinion just released by the U.S. Court of Appeals for the Tenth Circuit drives home my point about exercising your rights when confronted by law enforcement agents. The case is unpublished, which only limits it use by lawyers and court as to its precedential value, but is as much the law as any other released opinion. In the case the court found that the appellant had waived his rights and the statements he made to Homeland Security agents were consensual.

In U.S. v. Dates, the court found that the statements made in the back of the agents car were not subject to the administration of the Miranda warnings (of TV and movie fame) because they were not made during a Fourth Amendment seizure or the product of a custodial investigation.

There is a significant misunderstanding of when “Miranda rights” must be given to an individual. The common, but wrong, perception is that you must be informed of your right to remain silent, have a lawyer, have a lawyer appointed etc., if the police or agents ask you any questions. The reality and the law are not that simple nor direct. In the Dates case, the appellant declined to talk then sort of agreed to talk and then elected not to talk then agreed to go to a fast food franchise with the agents. He agreed to ride in their car, was put in the back and questioned by an agent on the way to the franchise. On the way there and after arriving he went back and forth on talking to the agents while also answering several questions. Ultimately, he asked for a lawyer (way too late) and the agents took him home. His answers formed the basis for the agents getting a search warrant for his home and later for his indictment in federal court.

He entered a conditional plea and challenged the use of the ill-considered statement he made to the agents. The federal appellate court found the statements were not the product of any misconduct by the government and they were freely and voluntarily made, thereby usable against the appellant. There was no seizure or custody of the appellant which required the agents to advise him of his right to remain silent.

So once again, with renewed proof of the importance of what I say, I must again state: When approached by federal or other agents, invoke your rights under the Fifth Amendment not to speak to them and your rights under the Sixth Amendment to speak with a lawyer first. REMEMBER you must do this as a 5th and 6th invocation, merely saying I don’t want to talk to you is NOT ENOUGH. Then get a lawyer experienced in dealing with federal law enforcement agencies to represent you. Federal law enforcement agencies, like federal court is different. YOU need someone with the experience and expertise to deal with them.

As always, these are your rights, Use Them or Lose Them.

Exercising Your Rights

I want to re-visit a couple of topics which I have covered a few months ago. They are your Fifth and Sixth Amendment rights. Most people are readily familiar with the Fifth Amendment’s preclusion of the government forcing you to be a witness against yourself, the popularly phrased right to remain silent. The Sixth Amendment is equally important in that it provides for the right to the assistance of counsel in a criminal prosecution. As I have stated previously, these rights from your perspective, as the subject of an investigation, begins at the initial contact. I thought that today i would give some real examples of how this works in your favor to assert these as the law calls it ab initio (at the beginning).

It is always a joy to me when I get contacted at the very beginning of an investigation. I can start working for my client in ways that are not available later in the prosecution.

No identities nor time-frames are included in the following examples, except to say they have happened within the last ten years of my practice.

I had a young man come to see me who had been contacted by the FBI. He told me the situation and what the Bureau was demanding of him. That he was not involved in the crimes they were investigating but they were harassing him as if he was. He retained me to represent him, which immediately put me between him and the agents. I gave him an Assertion of Rights Form which I have created and provide to clients. This form tells the investigator that my client does not choose to talk to them, that they are to contact me and they are not to have any further direct contact with my client. The FBI Special Agents came back, he presented the form to them. They left and called me to see if I, in fact, represented him.

After confirming that I did and telling them to leave him alone they never bothered him again. They did come out one more time and peek through the windows of his house. Once I learned of this I called the U.S. Attorney and threatened to report them to the Office of Professional Responsibility if any such conduct ever happened again. It didn’t. Some time later I learned that this client was killed in an accident. As it had been a long time, I inquired if he had had any further problems from the FBI and was told no, that after I did what I did he and his family were left alone. I was gratified that he did not have to deal with their nonsense the last days of his life. This client is just one example of this, but I have had this experience with clients several times. Just the hiring of knowledgeable counsel was enough to stop the frightening experience of dealing with federal law enforcement and letting the experienced attorney be the buffer.

Sometimes there is no way to stop the prosecution from occurring. The early retention of the right counsel is just as important because it may be possible to influence the severity of the prosecution by having discussions with the investigator and the prosecuting attorney. These discussions can result in lesser or more favorable charges being brought than would have happened had the person not been represented. This mitigation is extremely important as it can impact the final resolution of the case. A good beginning generally results in a good ending. Good is, of course, a relative term. But while there may be a conviction at the end, the sentence which follows it is no less important. A shorter sentence or even probation may be obtained by what is done at the beginning of a case.

So as I have stated, when contacted: Exercise your right to remain silent and exercise your right to speak with an attorney prior to having any “conversation” with any law enforcement agent.

Constitution Day

Today September 17 is Constitution Day. On this date in 1787 the current Constitution was signed and sent for ratification by the states. Most people have little knowledge or understanding of the Constitution, mainly because most of the rights which people reference are not in the Constitution but rather are in the Amendments. Most people have heard or were required to learn the Preamble to the Constitution which reads:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Contrary to much popular opinion, demagoguing politicians and pundits we do NOT have a democracy. The Founders by design insured that we did not have a democracy and the word does not appear anywhere in the Constitution. Indeed, the Founders feared the concept of a democracy because it was too chaotic and unstable as a form of government.

So what did the Constitution “ordain and establish”? Primarily, it established the three branches of government which has endured to the present.

The first branch of government is the Legislative. This branch was designed somewhat on the model of the English House of Commons and House of Lords. Hence, we get Representatives and the Senators. Originally, senators were not elected by popular vote, they were appointed by state governors and were a check on the popularly elected Representatives initiatives.

The second branch of government is the Executive. This branch was originally probably the weakest of the three. It was there to execute the will of the Legislative with the tempering of the Judicial. The concept of the “Imperial Presidency” which came of age in the early 20th Century was not envisioned by the founders. The idea of “Executive Orders” circumventing Congress to create a form of law is not contained in Art. II, Sec. 2 of the Constitution.

The third branch of government is the Judicial. The Judicial is probably the least understood branch of the three. First, the Constitution only establishes one court which is specifically named the Supreme Court. The other federal courts (district and appellate) are created by acts of Congress. The phrase, “I’ll take this to the Supreme Court” is often a vainglorious statement. The probability of having a case heard by the Supreme Court is extraordinarily small. First, the Constitution itself limits the jurisdiction of the Supreme Court to a select few issues which it must hear. Next the method of getting to the Supreme Court for most cases is a discretionary review request, legally nominated Petition for a Writ of Certiorari. At last review, less than 3% of such Petitions were granted. Those few which are granted usually fall into matters of weighty Constitutional importance or where two or more appellate (Circuit) courts are in conflict over a significant interpretation of law.

Article IV addresses the states and “Full faith and Credit” of the acts of one state being valid in the other states. This Article addresses the admission process for new states. Importantly the Article requires the state government mirror the form of government of the federal and states, “The United States shall guarantee to every state in this union a republican form of government…” This is important because it refutes the democracy form of government most often claimed as noted above.

Article V addresses the amendment process for the Constitution.
Article VI sets the pre-eminence of the Constitution and states in paragraph two: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

Article VII sets the ratification at nine states for adoption.
Finally, it is worth noting who signed this document. Because he is often called the Father of the Constitution, I must list first the name of James Madison. Other signers included George Washington, Benjamin Franklin, Alexander Hamilton, James Wilson, Roger Sherman and J. Rutledge. Several of these gentlemen also signed the Declaration of Independence.

Our Constitution is unique in the annals of human history. It is the great experiment which is still going on. While some argue over standing or kneeling for the flag, that is a side show. For it is the principles embodied in this Constitution which are ultimately the more important reverence. My undergraduate program focused on Soviet Studies. The Soviet Constitution was far better in terms of its declarations than our own. But they were only words and the Red Banner with the Hammer and Sickle did not embody the principles that our Constitution memorialized. Flags come and go (the U.S. flag has changed many times over the last 240 some years) We as a people must insure the efficacy of the Constitutional principles which our flag represents for all people or it is no better than the Red Banner.

This is not my Constitution or your Constitution, but white, black, Asian, Hispanic, Hindu, Muslim, Catholic, Protestant, Jewish or Atheist, whether liberal, conservative or middle of the road, it is our Constitution. Read it, embrace its ideals and as I took an oath to do some 50 years ago as a citizen protect and defend it from all enemies foreign and domestic, you can also. We can all do that by simply knowing what it says and correcting those who misquote and abuse it for their own political ends.