As long time readers of this blog know I am an attorney, for my sins no doubt. Although the bulk of my practice is civil, over the years I have defended hundreds of defendants accused of crimes, mostly felonies. This is part of my ongoing series about the life of a lawyer. For people who have not heeded my warnings about the profession and want to become attorneys, here are some tips regarding criminal defense work:
10. Guilty, Guilty, Guilty!- Contrary to what you may have gleaned from television, movies and novels, almost all of your clients will be as guilty as mortal sin. However, there is a difference between actual guilt and what the State has the burden of proving at trial.
9. Clients lie- People accused of crimes will sometimes be forthright with their defense counsel, but frequently they will lie. This can be a dangerous handicap at trial, especially since an attorney has an ethical duty not to knowingly have his client commit perjury. Sometimes the best thing any defense attorney can do is to rip to shreds a client’s lies in an interview prior to trial and advise them that what you have just done is merely a foretaste of what they will receive in cross-examination from the prosecutor.
8. Cops lie- Not all cops by any means, but enough so that a defense attorney will treat police reports with the scepticism of a priest listening to a politician’s confession and not hearing the sin of lying brought up. An example of this is the videotaping of field sobriety tests. It was assumed in Illinois that this technological development would lead to more DUI convictions. After all, cops arresting people for DUI would routinely report that the person arrested had badly failed the field sobriety test. Instead, it has been a boon for defense attorneys, since the videotape evidence is often at variance with what the police initially report after the arrest.
7. Witnesses can surprise you-Last year I was defending an individual where a witness identification of my client was a significant factor. At the bench trial the State produced a witness to identify my client. The witness took a look at my client from the stand and said he could not be sure as to his identification. That took both the State and my client by surprise. Never assume that either your witnesses or the State’s will not give you both good and bad surprises.
6. Motion to suppress–Remember your constitutional law course? It wasn’t a complete waste of time after all! I enjoyed constitutional law in law school, and it is extremely useful on motions to suppress, as Supreme Court cases on fairly fine distinctions of constitutional law come in very handy in determining whether evidence is admissible or not. It is often advisable to do a motion to suppress even if you think you will lose. It gives you more insight into the State’s case as the prosecutor defends against the motion to suppress, since the investigating officers are subject to cross-examination, and often-times aspects of the case can be made to appear weak in the eyes of the judge, even if he allows the evidence in. That can be a useful factor at both the trial and, if your client is convicted, at sentencing. Most judges will be more inclined to leniency in sentencing in my experience if the conviction was based on some weak or questionable evidence.
5. Location, Location, Location!-As in real estate, location is all important in criminal defense. Illinois has 102 counties and each of those counties is unique in just how they go about prosecuting crimes, with some being far more severe as others. Recently I had a discussion with a judge friend of mine who had done his share of criminal defense before donning the black robe. We both agreed on the best county to commit a serious crime, where prosecutors are always in a mood to give a generous plea offer. In other counties the maximum sentence is considered too lenient a plea offer.
4. Be realistic with your client- If your client is likely to go to prison because of his record, the seriousness of the offense and because no lawyer in the history of the planet could possibly win the case, tell him. It is his decision whether to proceed to trial, but you need to give him an honest appraisal of the case, especially if he has no interest in hearing it.
3. Know the Judge-Judges play a decisive role in a criminal prosecution. They come in all shapes and sizes. Fair, unfair, bright, dim, patient, impatient, humorous (at least they think so), humorless, etc. If you haven’t tried a case before a judge before, sit in on one or two hearings if you can squeeze out the time, and observe him or her intently. More cases are lost by attorneys misjudging the judge than for any other single factor except overwhelming evidence of guilt.
2. Bench trial or Jury?-Defendants get to pick whether they are tried by judge or jury. If I have a no hoper and we are rolling the dice because there is nothing else to do, I go with a jury. With a jury there is always a small chance, even in cases where the evidence is damning. I will also go with jury trials in cases where at least some of the jurors may be thinking, “There but for the grace of God go I!”. Otherwise, I will usually go with a judge, especially if my defense hinges on the trier of fact adhering strictly to the law.
1. Plea Bargains R Us!-The overwhelming number of criminal cases are resolved by negotiated pleas or blind pleas. The reasons for this are twofold: Most defendants would probably be convicted if they proceeded to trial, and prosecutors simply cannot physically try all cases they prosecute. I will often go with blind pleas where the judge imposes the sentence. At the sentencing hearing I generally can obtain a more lenient sentence from the Court than the prosecutor is offering. It helps having a few years under your belt and knowing the judges fairly well, and understanding the sentence they are likely to impose.
Criminal defense is not for all attorneys. Many attorneys want nothing to do with it due to the fairly harsh consequences that clients will often incur if the defense is unsuccessful or if no plea acceptable to the client is available. Myself, I have always found that it adds spice and excitement to my legal practice. Occasionally I do defend an innocent man or woman, and that leaves me with a very warm feeling when I can help someone in that situation avoid being punished for something they didn’t do. Criminal law tends not to be as lucrative, at least in my rural area, as civil law and the bulk of my practice will always be civil for that reason. However, when the occasion calls, I am always ready to defend those accused of crimes, and even in rural Illinois there is never a shortage of crime. Oh and for budding litigation attorneys, whether civil or criminal, always remember those two magic words: