This article is in response to a number of inquiries I have received asking me to outline what I would do for someone in their particular Criminal case. It’s a fair question. If you’re about to drop $1000, $2000, or $4000 in Legal Fees on a Lawyer, it’s probably a good idea to know what they expect to give you for your money, beyond a polite “thank you.”
Unfortunately, the answer to that question, in any particular case, is not so clear cut. Some might find a Lawyer’s reluctance to answer such a question with specific information to be a reluctance to “give away the store.” In some cases, that may be true. After all, that no one wakes up every day for a week with a stiff knee, then starts calling Doctors and asking them exactly what they’d do to make it better and expects to get a detailed answer. Any Doctor who would take such a call, however, would likely have the same answer any competent Lawyer would have in responding to a question about a person’s Legal situation: It depends.
There are really 4 significant parts to any Criminal case, at least once the case is active:
1. The person’s story. Their version of what happened, and why, and what they think the Police saw, or learned.
2. The Police story. Their version of what happened, what they were told, and what they learned. This is often well summarized in the Police Report.
3. The Prosecutor’s position. While this is largely based on the Police position, different Prosecutors have different personalities, and which one handles any particular case can have a profound effect on how it is resolved.
4. The Court in which the case is being heard. Beyond the fact that the different Counties have different approaches to cases, Judges, like Prosecutors, have different dispositions. Some Judges are especially tough on this or that type of offense, while other Judges might be more lenient toward the same offense, but tougher on another.
Thus, when a person calls and tells me their story, I have precisely ¼ of the information I need to get a clear picture. Going back to the Doctor analogy, after hearing the Patient’s complaints, the Doctor probably has figured out that whatever the problem, and ultimate solution may be, it most likely involves the knee. Great. But he or she will want x-rays, blood work, maybe an MRI and an exam, as well, before forming a plan.
Moreover, whether fair or not, the Police Report IS the story that the Prosecutor will be working from. Thus, even if the person’s story is completely different, the Prosecutor’s position, appropriately enough, will be that resolving the differences between the stories is what the Judge or Jury is for. That’s what is meant by the term “Defense.” The Defense “defends” against the allegations in the Police Report.
In general, my strategy is to see if there is any way humanly possible to get the case dismissed, or “knocked out.” The truth is, that’s rarer than 4-leaf clovers. Next, I see if the case is really “beatable” by challenging it, including taking it to Trial. If that doesn’t seem like a good plan, then the next, and most common consideration is working out some kind of Plea Bargain. This can involve reducing a Felony to a Misdemeanor, or otherwise reducing the charge. It can, and often does involve working out a deal which will completely keep the whole thing off my Client’s Record, so that in the end, it’s like the whole thing never happened. Other times, a deal can be made which will have the matter “come off” the person’s Record after a year.
In cases where there is a real risk of getting locked up, then keeping the Client out of Jail becomes priority number one. Sometimes this is accomplished by working out a Sentence Deal with the Prosecutor, other times with the Judge.
In all cases, of course, I work extensively with my Client to prepare them for their Probation interview which occurs after a Plea has been made, but before the Judge Sentences them. I have detailed this part of the process extensively in other articles, but in any case where the Law requires (such as in ANY Felony case, or ANY DUI case) or the Judge orders that a person undergo this “PSI,” or Pre-Sentence Investigation process, the result of that process is a Sentencing Recommendation issued by the Court’s Probation Department. This “Recommendation” can more accurately be described as a “blueprint” for what will happen, because pretty much every Judge, in pretty much every case, follows that recommendation, if not to the letter, then pretty closely.
What all that means is that no matter how high-profile your Lawyer, and no matter how charismatic he or she is, there isn’t going to be a big difference between what’s recommended and what happens. After 20 years of being in Court almost every day, I know this so well, even I’m at a loss for words to describe how true it is.
So if a Lawyer is going to have an impact on the Sentencing, then he or she needs to start by preparing the Client for that PSI. This means going over any drug or alcohol evaluations they might have to take (we’re talking written test here, not a urine test). It means understanding the psychology of the Probation Officer. These people deal with this stuff everyday, all day. You can bet that every first time offender who walks through their door say’s it will never happen again, yet ½ or more of the people on Probation have a prior Record. It means avoiding certain things, highlighting others, and knowing where the “land mines” are in the interview process. In many cases, the better “answer” or response might seem counter-intuitive at first, but who would really know this better than a Lawyer who deals with this every day?
In that regard, I have to laugh when someone tells me what their buddy who is or was on Probation told them. Talk about the last guy you’d want to listen to! His best thinking got him on the wrong side of the Probation Officer’s desk in the first place!
How all of the factors that make up any given case come together, and how they can be arranged, is unique to each case. If you’re looking for a strategy outline, I guess you could put it this way:
1. Dismissal, if possible
2. Beating the case, if possible
3. Keeping it off your Record, if possible
4. Having it “come off” your Record, if possible
5. A Plea Bargain, if you can’t keep it off, or have it come off your Record
6. Staying out of Jail
7. Avoiding “Probation from Hell,” and minimizing the severity of any Probationary Sentence.
I always tell my Clients that I will produce the best outcome humanly possible. I think any Lawyer should do the same thing. However, in order to do that, you have to have a solid, working knowledge of the Law, and know you’re way around the very Court where the case is pending. Meeting a Judge for the first time isn’t the way to start “helping” a Client. I can for example, tell a person who has no prior Record, and has a first offense DUI, Suspended License, or Possession of Marijuana charge what will happen, pretty much to the tee, once I know in which Court the case is being heard.
Those aren’t guesses, they’re explanations based on tons of experience. What I do not, and will not do is begin telling someone what I think they want to hear. That’s just plain wrong, and I don’t make a living that way, even if it means losing a potential Client here and there.
If you ask me to detail my strategy in your particular case, I hope this article will answer that question.