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Negotiating plea bargains.

From the blog Barking up the wrong tree:

A threat is "I will do something that hurts you even if it’s bad for me." A warning is: "This serves my interests and is bad for you." It’s better to try to convert your threats into warnings. Threats are no good, warnings are.

In criminal cases, as with all things in life, obtaining a good deal comes only from a position of strength. This is why prosecutors give attorneys better deals than they give pro se defendants; I can credibly tell a prosecutor that a motion to suppress serves my interests and is bad for his case. You probably can’t.

And prosecutors hate to lose cases before trial; if I win the suppression motion, the prosecutor probably loses his case outright. Whenever you have a credible warning with at least a uncertain outcome as the consequence, your case is ripe for a good deal, a bargain.

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March 4, 2010 — Filed under: Criminal Law, Pre-Trial Work — Tags: , , — Kelly Ann Booth @ 10:23 am

If you can afford it, you have to hire an attorney.

That’s what the Sixth Circuit Court of Appeals held in United States v. Wilson:

“[T]he court learned that Wilson had been staying at the “historic Brown hotel” in downtown Louisville throughout the trial, at a cost of roughly $10,000, after turning down the government’s offer of free accommodations. R.229 at 5. Further inquiry revealed that, by early 2007, Wilson was not a traditional candidate for free legal services: His income in 2007 totaled roughly $134,000; he lived in an exclusive section of San Francisco, where he paid $2,300 per month in rent; he has no dependents; his discretionary income in 2007 allowed him to spend at least $18,000 on the kinds of restaurants and wineries not known for catering to indigents; and Wilson’s friends had created a $44,000 fund to pay for his legal services in the case.”

Because of those facts, the district court ordered Wilson to pay for his defense:

“Recognizing that this was not the type of person Congress had in mind when it authorized the government to provide legal services to indigent criminal defendants, the district court was not pleased. After further factual investigation, it ordered Wilson to pay $52,305 in “reasonable monthly payments” for the costs of the public defender’s services.”

The Sixth Circuit concluded with:

“Happily for Wilson, the fee was worth it, as he was acquitted on all charges. Unhappily for Wilson, the district court did not abuse its discretion in ordering him to pay for the representation.”

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March 1, 2010 — Filed under: Criminal Law, Federal Criminal Law — Tags: , — Kelly Ann Booth @ 11:12 pm

You have the right to an attorney… for 14 days

Yesterday, the Supreme Court of the United States held that after you invoke your right to an attorney—which prevents police from questioning you—after 14 days, police can question you.

Confused? Let’s start at the beginning.

In 1966, in Miranda v. Arizona, the Supreme Court ruled that before interrogating a suspect, police must inform him of his right to remain silent. You’ve seen Law & Order, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.…” Those are your Miranda warnings.

In 1981, in Edwards v. Arizona, the Supreme Court held that when a suspect in custody asks for an attorney under his Miranda rights, police have to stop questioning him and cannot ask him to change his mind.

Fast forward yesterday, to Maryland v. Shatzer. In that case, police arrested a man who then asked for an attorney; terminating his interrogation. Yet three years later, the police question him again and this time he admits to the crime.

His attorneys take the case to the Supreme Court. They argue that he invoked his right to an attorney and therefore the police interrogation was unlawful and his confession should be excluded. A unanimous Supreme Court held that the Edwards rule expires; a majority held that it expires 14 days after a suspect is released from custody.

What does this mean, practically speaking? If you are arrested and ask for an attorney, the police will probably let you go at some point. 14 days after they do, you’ll get a call from a friendly detective that just wants to chat… someone that is so sorry about the whole misunderstanding. After you feel nice and warm and fuzzy, you’ll probably say something that gets you in trouble.

Police will make repeated attempts to talk suspects. Criminal defendants can—and should—reinvoke their right to an attorney. Most importantly, never try to talk your way out of trouble with the police, that’s your attorney’s job.

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February 25, 2010 — Filed under: Constitutional Law, Criminal Law, Procedure, Supreme Court of the United States — Kelly Ann Booth @ 9:46 am

12 Shots, 1 Crime or: It’s the law, stupid.

If you punched someone in the face 12 times, the law considers that 1 assault.

If you steal 12 items from someone’s house, the law considers that 1 burglary.

What about a drive-by shooting where 12 shots were fired at a house? Is that 1 crime or 12?

In my client’s case, the State argued it was 12 separate crimes. Why? Because then they’re able to throw the book at someone and show that they’re tough on crime.

But in Utah, that’s not how it works. Where there is “one intention, one general impulse, and one plan, even though there is a series of transactions, there is but one offense.” (State v. Irvin, 2007 UT App 319, ¶ 18, 169 P.3d 798.) That’s the law. It’s called merger.

Today, we argued this doctrine before the court. Some people would call this a “technicality,” I call it the law. Fortunately, so did the judge. The court reduced my client’s maximum potential sentence by 55 years. I call that a win.

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February 22, 2010 — Filed under: Constitutional Law, Criminal Law, Legal Research, Utah District Courts — Tags: , — Kelly Ann Booth @ 9:08 pm

My client was charged with a nonexistent crime.

Yesterday, Midvale charged my client with a nonexistent crime. It formally charged my client with “refusing to submit to a chemical test.” The problem is, that’s not a crime.

In Utah, if you refuse a chemical test (breathalyzer, blood, or urine test—NOT Field Sobriety Tests, you can refuse those) the Driver’s License Division can suspend your license. Yet there’s no criminal penalty; no fine, no jail time. Don’t believe me? Check it out yourself by reading the law.

Amazingly enough, that doesn’t prevent the government from charging you with a crime. And unfortunately, my client had to spend money by retaining me to defend against a nonexistent crime.

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February 18, 2010 — Filed under: Criminal Law, Legal Research — Tags: — Kelly Ann Booth @ 1:39 pm

Looking for an attorney? Look for someone who is prepared.

“To… not prepare is the greatest of crimes; to be prepared beforehand for any contingency is the greatest of virtues” – Sun Tzu

People ask me what to look for in an attorney. Whether it’s family law, litigation, or a criminal case, I always say the same thing: Look for someone who prepares.

How do you know if someone prepares? Easy, ask. But you need to ask the right question. If you ask, “Do you prepare for trial?” every attorney will say “yes.” A more telling question is “What did you do to make sure you would win your last trial?”

You should hear something like, “I interviewed my client and reviewed documents so I would be familiar with the facts of the case.” Or “After I understood the facts, I looked for legal areas we could exploit and I filed several pre-trial motions.”

Preparation is the key to winning. Everything else is just luck.

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February 17, 2010 — Filed under: Administrative Law, Civil Law, Criminal Law, DUI, Legal Research, Procedure, Trials — Tags: — Kelly Ann Booth @ 11:50 am

Good trial attorneys tell stories.

People like to connect the dots. We naturally explain how things happen, how the world works. For instance, when we meet tall people, we assume they have tall parents. One piece of data—someone’s height—leads us to a cause, tall parents.

How does this relate to criminal defense? A jury needs to understand why the government charged you with a crime. They need to see why it’s reasonable to believe you didn’t commit a crime. And good trial attorneys do this with stories.

Not guilty verdicts come from interesting and believable stories. Three weeks ago, I defended a man against a traffic ticket. Not the crime of the century, but he was upset the government charged him at all. It charged him with improper lane travel and reckless driving. Why would the government do this?

According to the prosecution’s story, my client violated numerous traffic laws before a plain-clothed officer pulled him over; for safety’s sake. Yet our story was completely different. We told the jury about the officer’s  fit of road rage.

As both parties agreed, my client cut off a policeman. Yet the government claimed this was my client’s latest traffic violation after a string of observed offense. Sound plausible, right?

Wrong. If the policeman saw an aggressive driver, why wait until he was cut off to do something about it? The officer didn’t have a good answer and agreed that the general public deserves vigilant protection. And what about the van that pulled onto the street without a signal causing my client to swerve and avoid a collision? The officer saw it pull onto street but blamed my client for not letting him in. The problem is, you don’t have a duty to let anyone into your lane of travel.

But at the time, the officer didn’t care. As officers often do, this one lectured my client for 10 minutes before giving him a ticket. With those facts on the record, the jury understood why the officer gave my client a ticket: Not because my client was reckless, but because the officer was angry.

We told the jury our story and they understood. Not Guilty.

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February 16, 2010 — Filed under: Civil Law, Criminal Law, Trials — Tags: , , — Kelly Ann Booth @ 12:26 pm

Be patient.

Today, I had a client write me an email which said “I just can’t wait for this to be over.” While I understand this sentiment, my advice is be patient.

In the real world, cases rarely get better with time. The government rarely finds new evidence which hurts your case. Instead, memories get worse, people forgive, and cops retire. All of these things help you win.

So endure. Having criminal charges hanging over your head is never a comforting thought. Still, having a criminal conviction is worse. If you can endure in the short term, you’re likely to benefit in the long term.

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February 13, 2010 — Filed under: Criminal Law, Trials — Tags: — Kelly Ann Booth @ 12:00 am

The justice system is about winning.

What do Utah’s Harry Miller, Florida’s James Bain, and my latest client have in common? Three things: (1) They all claimed actual innocence; (2) they all believed that actual innocence would be enough to exonerate them; and (3) they were all wrong.

In a previous post, I detailed Harry Miller’s plight. The State accused Miller of robbing a woman about two weeks after having a stroke. The State’s theory relied on Miller flying to Utah, robbing a woman for a paltry sum, then flying back to Louisiana. Nearly impossible. Miller spent four years in prison. His defense was actual innocence. The jury still convicted him.

As heinous as that sounds, James Bain’s case is much worse. Today, Florida released Bain from prison after 35 years. DNA evidence exonerated him after a Florida jury convicted a then 19 year old Bain of raping a 9 year old boy.

Last week, a jury convicted my latest client of a drive by shooting. His family retained me to arrest judgment and move the court for a new trial. This man’s family is awe struck. They were sure he would be found not guilty because he was innocent. They are still incredulous, the whole trial surreal.

All of these people believed that the system works. Somewhere along the way, they heard Blackstone’s Formulation: “better that ten guilty persons escape than that one innocent suffer.”  This ratio, with origins in the Bible, is no longer true. The justice system is not about justice, it’s about winning.

Prosecutors don’t get promoted for dismissing cases, they get promoted for winning them. Winning is important to prosecutors because the voters that put them into office believe in punishing criminals; justice is swift and merciless. Justice is not compassionate or understanding.

So what’s the moral of this post? When charged with a crime, don’t depend on the kindness of strangers to do the right thing. Don’t even depend on the truth. Depend on a competent attorney who is going to toss and turn in bed at nights over how to set you free.

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December 17, 2009 — Filed under: Criminal Law, Trials — Tags: , , — Kelly Ann Booth @ 11:31 pm

Save Utah Expungements

This coming year, the Utah legislature may revise Utah’s expungement laws for the worse. The proposed changes in expungement law severely limit people’s ability to expunge convictions. I urge you to write or call your Utah representatives and tell them to kill this bill.

Proposed as the “Utah Expungement Act,” the bill’s stated goal is to help people expunge (which means to seal and effectively “erase”) old convictions by making the process  more “user friendly.” Yet certain provisions in the bill, if not amended or removed, will seriously undermine that worthy goal.

Expungement Fees

This bill increases the fees someone must pay to obtain an expungement. Currently, an expungement costs $145; $0 if you are ineligible. The proposed bill adds an application fee which has yet to be determined. With this addition,an expungement will probably cost upwards of $200. Also, most people cannot qualify to have the fees waived. Utah defines indigency in a way that people with even modest incomes have to pay.

Prosecutorial Discretion

The bill gives prosecutors the ability to restrict arrest record expungements.  Under the proposed changes, a person must obtain confirmation that the prosecuting attorney has declined to file charges before they can get an arrest expunged. This presents several problems:

  1. It gives prosecutors unreasonably wide latitude.  They can sit on an arrest for years and years and never formally decline to prosecute it. Also, for some crimes there is no statute of limitation. In theory, a prosecutor that believes a person is guilty of a crime but has no evidence to prove it can call that person a suspect for life. By refusing to “decline to file charges,” the prosecutor ensures that the arrest sits on a person’s record for years, potentially forever. 
  2. It requires some sort of affirmative statement from the prosecutor. Generally prosecutors have to charge someone with a crime, then at a later date dismiss the charges as “decline to prosecute.” Yet if no charges are ever filed is a declination written? Verbal? Is there a time limitation for the prosecutor to “decline”? Months? Years?  There should be a time limit.
  3. Who is the “prosecutor?” Often, crimes can be charged at a State or Federal level. If the District Attorney and the United States Attorney are both considering filing charges, do they both have to sign off?

Investigative Exception

The proposed bill is problematic regarding investigations because it is vague. It prevents a person from obtaining an expungement on if a crime is being investigated. More problems:

  1. What is “being investigated?” How would the Bureau of Criminal Investigation know? What if an investigation is confidential or unknown to the applicant?
  2. This gives unreasonably wide latitude to law enforcement. The police can simply say they are investigating someone to prevent them from expunging any blemish. In theory, a single police officer with a grudge, but no evidence, can prevent an expungement by claiming “ongoing investigation.” Think about a suspected or former gang members. If a person has left or is even trying to turn around his life by expunging an arrest record, law enforcement can prevent it merely by stating that the person is under investigation for suspected gang activity.

Although the most important, these concerns are just the tip of the iceberg.

People deserve a second chance. More importantly, people that have been wrongly arrested or accused deserve to have their first chance unblemished. Tell everyone you know about this bill and ask them to call or write their legislator and we can defeat this proposed law before it ever sees the light of day.

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November 22, 2009 — Filed under: Criminal Law, Utah Legislation — Tags: , — Kelly Ann Booth @ 1:46 pm
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