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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

Credibility is always an issue.

Yesterday, I defended a man against two domestic violence charges. We won. The biggest advantage we had at trial was the credibility of the accuser. She had none.

A quick background: A couple is quickly heading for divorce. She starts irritating her husband with little things, like parking in the middle of the garage so he can’t park his car there. He in turn starts to demand half of everything, including closet space. This argument turns into an alleged crime; he accuses her of pushing him, she—in her 911 call—accuses him of hitting and kicking her.

Yet at trial, when asked if her husband hit her, she says “No.” The “kicking” isn’t even brought up. These were not her only inconsistencies. She claimed that a bruise on her leg was the direct result of his abuse; yet even the prosecution conceded that the bruise couldn’t have formed, spread, and yellowed, all within 20 minutes. She was lying; her testimony, suspicious.

Through extensive pretrial research, we found a history of dishonesty. In her first marriage, she had accused her ex-husband of almost the exact same crime, in almost the exact same language. She used this accusation to obtain a protective order against him. Curiously, when he gave her the house in the divorce, she removed the protective order. Also, within the past month, she pled guilty to shoplifting.

Domestic violence cases are often charged solely on “he-said / she-said” evidence. Here, the judge saw that my client’s accuser alleged a crime not because she was a victim, but to obtain leverage in her divorce. We won because we showed the judge her bad-faith motives.

Credibility is always an issue and in this case, was largely the only issue.

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October 23, 2009 — Filed under: Criminal Law, Trials — Tags: , , , — Kelly Ann Booth @ 1:17 pm