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:
Just a couple of days ago my wife was pulled over by a police officer while driving. My wife was stunned that she was pulled over in the first place. However she was polite and respectful, but completely railroaded by the officer. He was condescending, rude, and intimidating.
After she got home she looked up the citation, we realized at once the officer was wrong. But also that the violation results in a misdemeanor. We were stunned. Because of the nature of her job, the misdemanor could put her employment in jeapordy. We immediatly called an attorney. We knew that this was something we needed to take seriously.
I have a new found respect for attorneys, and I realize now how important they are. I used to think they were all “ambulance chasers”. But the fact is police can be wrong and are wrong at times. They wield great power and they don’t always have the responsibility that comes along with it. In a matter of minutes your job and livelihood, as in my wife’s case, is in jeopardy…
We both learned a big lesson about police that day. our experience has been a real eye opener.
I’m mainly a civil litigation attorney, but in the few criminal defense cases I’ve worked, the sentencing stage was the most important. Like you say, most defendants are guilty, so a lot of the work is trying to get the lowest sentence possible.
So another item on the list could be: get to know your sentencing procedures/guidelines.
“get to know your sentencing procedures/guidelines.”
Indeed. Other sentencing tips:
1. Have the client express remorse for the crime and say almost nothing beyond that, other than to apologize to any victims of the crime. Defendants often aren’t very articulate, and if care is not taken they will frequently go into excuse mode for their behavior which is precisely the wrong attitude to take.
2. Have parents of the Defendant present if possible.
3. Keep your client’s expectations reasonable. “No, I am afraid that the judge is not likely to give you no jail time on an armed theft conviction.”
4. Never attempt to minimize the offense to the Court in closing at the sentencing hearing, but bring up all points possible indicating that your client has learned his lesson and is salvageable. (The worse the record the less this argument works.) Judges are often wondering two things at sentencing: “Am I going to have this Defendant in front of me again for another crime soon”, and “Has he gotten the message that he needs to obey the law in future?”
5. If restitution is going to be an issue, if it can be paid to the satisfaction of the victim prior to sentencing that can have an immensely positive impact on sentencing. I have had very good results doing that.
Good points all, Don… I would especially emphasize # 3, knowing your court. I’ve had countless cases where new/visiting defense counsel have failed to do the most basic prep in this regard, to their detriment. Just ask the prosecutor or a seasoned defense attorney: “what do I need to know about appearing before this judge?”
Some cops lie, but in my 24 years in the business, I think it’s exceptionally rare. It IS true that, as with all witnesses, perceptions are shaded by life experience, assumptions, and tunnel-vision that can all contribute to a truthful, but possibly not entirely accurate, accounting of what happened. In my experience, cops outright lie MUCH less frequently than many in the defense bar.
I’d be very judicious about filing motions to suppress. I dealt with one yesterday that was really just one shade away from frivolous, but the earnest defense attorneys wasted 90 minutes of the court’s (and my) time, even arguing issues that they themselves knew, from a prior hearing, were utterly without legal merit. They did their client no good, and possibly some harm, by arguing an essentially baseless motion.
Which brings me to the most important point of all, for defense or prosecutor: your credibility with the court is the most important quality you possess as a litigator. Do not squander it for one case or one client, no matter how urgently you think you should push a bad case or how sympathetic you are to a particular client. Cases and clients come and go, your credibility before the bench should remain uncompromised.
Oh, and definitely, a beginning defender needs to realize the client is often feeding you a pile of manure about his case. I love the look on a defense attorney’s face as we review the police report or even the defendant’s criminal history after the attorney relates a convincing story of innocence provided by his client, much like the first youtube clip, above.
The Bottom Line for a defense attorney: Don’s #10 is spot on: It’s about damage control in 99% of the cases. You might get that genuinely innocent person 1% of the time, but the vast majority of times, the goal is to minimize the damage, by either charge reductions or sentencing agreements (Don’s #1 point).
I suppose this goes without saying, but how about, “be prepared.” I was on a jury once and was struck by the basic ineptness of the PDA. He was an elder gentleman and his client was obviously guilty. Yet he looked lost out there, and remember one exchange with the primary witness where he harped on a point that was completely meaningless. It sure didn’t help his client.
By the way, the bit about cops is also true for prosecutors. My friend is a former DA in New York, and the biggest complaint he had was about the cops. Not only did they not always speak the truth, but he couldn’t rely on all of them to even be helpful with the prosecution. It’s certainly not true of all or most cops, but his view of the police certainly soured during his time as a DA.
“I’d be very judicious about filing motions to suppress. ”
In my rural Illinois county Tom we can usually dispose of them in about 20 minutes on average. I never file one unless I have some legal basis for it. I know our 3 judges well: one for 16 years before he became a judge, and we tried cases against each other and together, and the other two since they began practicing law. I have a reputation for not wasting time, and they all know that even when I lose a motion to supress the hearing has served a purpose for the defense. It always amazes me, however, the number of attorneys that go out of their way to tick off judges by wasting court time, not being prepared, not being on time, etc. Simple things like dating orders before handing them up to a judge so he doesn’t have to do it can demonstate simple courtesy that most judges appreciate. Judges are only human, and an attorney they respect is usually going to fare better with him or her than an attorney they don’t.
Mr. McClarey: I am an undergraduate studying history and I am very interested in law as possible profession. I have heard that the job market for lawyers is not very good but I am interested in some sort of public service law such as indigent defense as opposed to private practice. Would you happen to know if that would improve my chances of employment at all? Your posts on law (and everything else) are informative and entertaining. Keep up the good work!
Thank you Pat! There is always work for attorneys depending upon what they wish to do. Jobs that pay attorneys 150k a year at big law firms are, indeed, in short supply. If you go to a prestigious law school and are in the upper 5% of your class, however, you would probably get one of those, but that is not what you are interested in.
As an attorney for the indigent, you could be an assistant public defender or work for an entity partially funded by the federal government which provides legal services to the poor. Linked below is an example of such an entity:
http://www.pslegal.org/
Other avenues of service would be as an assistant prosecuting attorney, either state or federal. You could also apply to be commissioned as a Judge Advocate General, JAG, with one of the armed services. However, those slots where you are commissioned as an officer and serve as a military attorney tend to be highly competitive these days and not easy to get.
My advice to you as an undergrad would be to watch as many hearings and trials you can at the local courthouse to make certain that this is what you wish to get into. See if one of the local lawyers might allow you to follow him or her around through a typical day to see if what they do is of interest to you.
When you go to law school, shoot for one with the best scholarship to debt package. Remember that most law school scholarships have a fairly high grade point average requirement at law schools in order for them to be retained. The first year of law school is a shock for many students, since for the first time in his life the student is competing against students just as bright as him. It is not unusual at law schools where grade inflation has not completely taken over for even very hard working students to get a few dreaded C’s the first year!
At law school take as many courses as you can on criminal law. There will always be crimes and a good criminal defense attorney or prosecutor will never lack for employment. If bankruptcy courses are offered take them. A good bankruptcy attorney can always find emplployment, and if you are going to represent the indigent, a knowledge of the Bankruptcy Code will come in handy. Administrative law might well be useful. Most states have plenty of jobs for attorneys skilled in administrative law. It can be a good career path, with an eventual administrative law judgeship down the road.
One of the good things about the law is that there are plenty of avenues of employment if you know where to look, and I haven’t even touched on private practice at a small firm which is what I have done for 29 years! The main things are to keep your debt from law school as low as possible, make sure that the law is something you wish to do with your life, and see the reality of the law for yourself before you go to law school.
Great advice! Thank you!
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