I generally like people, and almost always like my clients, even though they come to work with me during some of the most difficult parts of their lives.  I also enjoy knowing that I had a part in helping them put their lives back together after the end of the investigation or prosecution in which I was their attorney.  Staying in touch is important, for both sides of the equation. The lawyer needs to maintain a good and ongoing relationship with his or her former client so that they can quickly connect up with one another if something like this comes up.  The client needs to know he or she can easily get their lawyer for the same reason.

When people interview me to decide whether to hire me as their lawyer, I always suggest that they keep in mind that their lawyer needs to be someone that they trust.  This should be a deep down trust, the kind that allows the client to rely on it when making some of the most important decisions of his or her life.  Only if the client is pretty sure that the attorney is someone they can rely on now, and in the future, will that kind of trust be established.  They need to know that their lawyer is someone who will reach out to them, even if that happens to be 10 years down the road.

Today’s episode reminds me of another lesson I always try to teach younger lawyers.  Read the morning paper, you see lots of stuff about former (and some future) clients.

We all know the drill. A federal criminal case is announced after a person is arrested or charges are issued by a grand jury or a criminal complaint is filed.  Then, the multi-page press release is issued.  The public gets this “news” when a media outlet or a reporter for a more standard publication writes a story about the new case.  However, here is where things have changed so drastically over the years.

When I began three and a half decades ago, reporters ALWAYS called the defense attorney for a comment or reaction to the initial story.  This was ingrained into all journalists, the need to strive for “objectivity”, and the realization that there are always two sides to every story.  Sometimes it made sense to comment, many times the better course was to clam up and let the case work itself through the court system.  I remember one case where an egotistic young Public Defender (OK, it was me) told the assembled group of reporters, “We’ll do our talking in court, unlike the prosecutors.”  We got our butts kicked anyway.

Nowadays, things seem so different.  Every federal prosecutor’s office now has a professional media person who regularly issues press releases.  The first paragraph announces the case and charges, and then there are 3-4 paragraphs where the media flacks for the various agencies like the FBI and DEA spout off about how great their investigators are and how bad the accused person is.  Then, buried down in the 5th or 6th paragraph is a one-liner where the prosecutor needs to try and adhere to ethical rules by noting something like: “Criminal indictments contain only charges; defendants are presumed innocent unless and until proven guilty.”  Somehow, this line never makes its way into the subsequent media stories.

Reporters gobble this stuff up like candy.  Their story is written for them, so all they need to do is re-work a few words and phrases to avoid charges of plagiarism and Voila!  A full-blown piece of “journalism.”  What is missing?  Any comment from the Defendant’s representative!  No one calls the defense lawyer any more.  The public only wants to hear about the charges, and no one bothers to mention that charges are just the beginning of the case, not the automatic end of the story.

I have a client who got charged recently amid a media blossom of attention when the press release announced she had been arrested for selling “illegal products claiming to protect against viruses.”  The media all jumped on the story.  No story had any comment discussing the accused person’s side of the case.  Her family retained me, and I discovered that my client had lots of information that people regularly use this product in Japan.  More astonishing, was the photo in her phone (seized by the Feds) of her little 7-year old son looking so cute in his Cub Scout uniform, WEARING THE SAME PRODUCT!  In other words, she thought it was legal and that it would protect her family, otherwise why would she use it on her son?

We worked out a deal, because the sale of unregistered products is a crime, even if the seller does not know it is illegal.  We also convinced the prosecutors to drop felony charges and allow the Defendant to plead to a misdemeanor and pay a $659 fine.  The press release was issued within hours of her guilty plea.  No mention of people in Japan using the same product.  No discussion of how the law does not require a “guilty mind” in this kind of case.  No mention of the little Cub Scout wearing the product his loving mother thought might protect him from coronavirus.  The national news stories merely repeated what the federal press release said.

Fortunately, I know some of the experienced local reporters.  I was able to get connected the the reporter handling the story.  I felt it was only fair that the public know my client’s side while she was being publicly ridiculed and ostracized.  And, that reporter did was good reporters always do, he wrote a piece that mentioned some of the details we included.

Like many areas, journalism has changed significantly.  I wish that reporters would go back to times when they always tried to get both sides of a story and did not simply reply on press releases issued by the government.

First, there is the plea agreement.  It is absolutely necessary that the attorney and client review this, together, and in detail.  Even the most sophisticated clients are often surprised about the verbiage that prosecutors insist on being placed into a plea agreement document.  And, even the most experienced lawyer sometimes fails to remember all of the boilerplate that is in a “standard” plea agreement, so it is always worthwhile to go over the document with the client line by line.

Second, the attorney needs to fully explain to the client how the guilty plea process takes place.  At the guilty plea, the client, attorney and prosecutor all appear in front of a Judge.  One of the first things in some Districts is that the prosecutor has to “verify” the signatures: “Mr. Defendant, is that your signature on the plea agreement”, or something like that.  Next, the Judge engages in what we call the “plea colloquy”.  This is a standard set of statements, and questions, through which the Judge assures that the guilty plea is what the Supreme Court calls a “knowing, voluntary and intelligent” waiver of the client’s rights to have a trial.

Third, during the colloquy, the Judge also must be satisfied that there is a “factual basis” for the plea.  In other words, the court has to be assured that the Defendant is truly guilty.  Normally, the Judge asks the prosecutor what he or she could prove if the case went to a trial.  However, some Judges ask the Defendant what he or she did that makes them guilty of this particular crime.  This is more tricky, for this is usually the first time that the Judge will hear from the Defendant directly, and first impressions are important.  Also, some Defendants are reluctant to plead guilty, and it is usually a poor idea to let the Judge know that.  The attorney usually needs to work with the client to assure that the Defendant fully admits to the crime, while not demonstrating such reluctance that the Judge will reject the plea altogether.

In a federal criminal case, the Judge will also explain the sentencing process and a brief overview of the complex Sentencing Guidelines.  More importantly, the Judge will remind all the participants that the final decision on a sentence is for the Court, and if it is higher, or lower, than the lawyers or the Defendant anticipated, that generally is not grounds for either side to back out of the guilty plea.

The Judge will usually schedule another day for the sentencing hearing, or will tell everybody that the date will be set based on when the Presentence Report is finalized.  Sometimes, the process of preparing the Report begins that same day.

The final aspect of pleading guilty is whether the Defendant will be in, or out of, jail up until the sentencing hearing.  People who already are incarcerated rarely are released.  Some people who come to court on bail are taken into custody if they plead guilty to some very serious crimes, or if they have violated a condition of their release.  The attorney should try his or her best before the hearing to make sure that clients who come to court on bail are allowed to remain free up to and possibly through the sentencing hearing.

This is just a brief overview of the guilty plea process.  Each case is different, but clients need to fully discuss his process with their attorney.

The research is clear.  Trials are down, way down.  Punishments are going up.  But, punishments for the rare few who dare to challenge “the feds” in court are really going up, higher and higher.

While the research is clear, what is less certain is the impact that the Trial Penalty has upon that group of Defendants who likely are Not Guilty.  I say “likely” because only a jury gets to decide who is Guilty or not.  Although that decision is reserved for juries, all lawyers know that there are some cases where the guilt/innocence question is very close.  Experienced lawyers on both sides of the courtroom know quite well that some Defendants are likely not guilty, even if a jury comes to a different conclusion.

I know for a fact from my 37 years of doing this work that some likely Not Guilty defendants have pled guilty to crimes they did not commit, just so they would avoid the Trial Penalty.  There are obviously many reasons why an innocent person would plead guilty: they want to avoid prison, to avoid the cost of an expensive and lengthy trial and appeals process, and they want to end the suffering for their families.  Trust me, it does happen, a person will sometimes admit to something he or she did not do when they balance out their options and decide that the potential Trial Penalty is too big of a risk.

I saw this process earlier this year after a lengthy period during which I represented an extraordinarily honest and highly accomplished member of the Executive Branch of the U.S. Government (I am being purposely vague, so as to avoid any specific description of my real client).  I told my client we should have a trial, for he/she was simply “Not Guilty.”  My client decided he or she  had too much to risk, so the client agreed to the “deal” I negotiated, no jail time in return for a plea to a very minor offense.  When we got to court, even the Judge said the client likely was not guilty.  The client decided to stay with the deal, for his/her evaluation was that it was too big of a chance to leave the future in the hands of an unknown jury.

I have some other matters coming up soon in which I am fairly certain that my clients are Not Guilty.  I am willing to go to battle for these and all of my clients, but the Trial Penalty will always be a factor we need to take into account.  In my opinion, the people who created our otherwise wonderful Constitution would be very unhappy that a man or woman is unduly punished for asking for a trial, a right for which the founders of this nation went to war.

Many people consult a criminal defense attorney after they learn they are under investigation for some possible crime.  A few people come to see me because they know they did something that could lead to an investigation, even if the investigators have not yet contacted the person. In these early stages, the key for the criminal defense lawyer is to fully understand what happened.  When, early on, the lawyer has a very good grip on the facts, potential crimes,  and possible defenses, the attorney is often in a position to do a lot of good for the client.  At this early phase,  investigators and prosecutors are sometimes just looking into whether they should, or should not, bring charges against a person or company.  If the defense lawyer feels he or she can talk the prosecutor out of charges against the client, it is often easier to do so early rather than later.  But, this strategy is not always the best course of action, especially if the attorney feels that there is a chance that the client could be convicted if the prosecutor does decide to bring a charge.  Going in to see the prosecutor too early can be a signal of weakness.  Some situations call for a “wait and see” tactic.  No two cases are alike, and the experienced criminal defense lawyer needs to consider what happened and whether this particular prosecutor seems to have the appetite for this particular type of case.

In other situations, like the case involving the client who went to do a “proffer” today, it is clear that cooperation is the best way to possibly avoid either getting charged or facing a serious sentence.  For example, my client already made some incriminating statements to law enforcement officials before he ever came to see me. I wish he had not done that, for it reduces my options when the client has already spoken with law enforcement.  Clients sometimes want to clear their conscience, or simply feel they “have to”  talk with the police or investigators.  Remember, no one is ever obligated to answer any questions from law enforcement, despite the lies that the agents and investigators will cleverly spin when trying to get a person to speak with them.  However, for the situation involving the client who today went in for the proffer session, cooperation is clearly the better route, for the investigators already had a lot of evidence before they went to speak with him.

Some people think they do not need an attorney when the matter is merely “under investigation.”  Obviously, many people are intelligent and can make decisions for themselves without having to pay a lawyer.  However, there is a reason for the many professional specialities in our modern world.  I would not want to do my own brain surgery or complex electrical wiring projects, and most people who use the services of an experienced criminal defense lawyer make a far better decision when deciding whether to fight or cooperate.

One final word on proffers and cooperation.  Once the client goes in for a full round of questioning during the proffer session, there is no going back.  The “proffer agreement” currently used by federal prosecutors usually says that the government cannot use the client’s statements, UNLESS  certain things happen.  One of those exceptions is the part of the proffer agreement that says the client’s statements can be used if the person, or his lawyer, takes an “inconsistent position” in some later proceeding.  I have had prosecutors claim this means I cannot even question witnesses at a later trial for that would be “inconsistent” with the client’s proffer statements to the effect that he did the crime.  Fortunately, I have been able to avoid this bit of prosecutorial over-exuberance, but it shows that once the client goes down the cooperation road, it is almost impossible to go back.

Many clients are not always aware of the various tasks and prep work that are required when a criminal defense lawyer is preparing for a trial.  Obviously, the lawyer needs to do his or her homework on the facts, find out what the witnesses will say, and develop methods for attacking the witnesses for the prosecution.  The lawyer sometimes also needs to prepare his or her own witnesses.  One of the biggest tasks is counseling the accused person on whether he or she should, or should not, testify in their own defense.  The final decision on whether the Defendant should testify is completely up to the client, the lawyer can merely provide advice.  However, this often is the biggest single decision in a case, and good defense counsel always put a lot of work and thought into providing this advice to their clients.

Today, I am also working on a less well-known aspect of trial preparation: proposed jury instructions.   Some of you may know that when the evidence is finished in a criminal case, the Judge has to tell the jury his or her “instructions” or what is sometimes called the “jury charge.”  These are basically the rules that the jury has to follow when deciding if the prosecutor has met the burden of proving that the Defendant is guilty of the charges beyond a reasonable doubt.

Most jurisdictions, such as the State of Georgia and the Federal Courts, have “pattern” or “standard” jury instructions.  These have been developed by judges and experienced practitioners for use in the more common and run-of-the-mill case.  These standard charges cover areas such as how the jury acts, the rules for considering evidence, burdens of proof, and specific rules for deciding if certain crimes have been proven.  The standard instructions also cover some defenses, like alibi, mental illness or self-defense.

Most judges want each side to propose jury instructions.  Toward the end of the case, the Judge will usually have a conference with the attorneys, and may hear some arguments about which charges he or she will, or will not, actually use with the jury.  The are two main reasons this is often a crucial part of the case.  First, I usually want the Judge to give the rules that are more favorable to the defense. Second, when the Judge refuses to give an instruction that is proper and a correct statement of the law, that refusal is often an issue I can bring up on appeal if my client is convicted.  “Bad” jury instructions are one of the most common errors that get a conviction reversed by the Court of Appeals.  For these two reasons, I usually try to put significant effort into the proposed jury instructions that I file when getting ready for a trial.

For starters, in this and every other criminal defense case I have handled for the past 36 years, THE DEFENDANT IS PRESUMED TO BE INNOCENT!!!!!!!!!!!!! Please people, remember how it would feel if someone made accusations against you or your family.  There are merely allegations by prosecutors who have not had to have their theories tested by experienced criminal defense lawyers.  I cannot tell you how many times in my career a prosecutor or investigator told me or a Judge early on that the government had a “strong case” and had to eat those words later when the Judge and/or jury agreed with our defense and found the Defendant “Not Guilty.”

Second, the press, once again, is miserably failing in its obligation to realize that this is merely one side of the story.  One can look far and wide to try and find a story where some journalist casts a critical eye on all of the prosecution’s claims, which it bears repeating, have not been tested in court.

Third, this case may be the worst example yet of the increasing use of the “perp walk” in non-violent and high-profile arrests and prosecutions.  I am shocked and dismayed that some foolish supervisor in the Department of Justice said it was OK for armed federal agents to creep up to an actress’s home at dawn with weapons and handcuffs, all because the actress supposedly paid for an advantage for her child in the competitive college admissions process. TAKE A CHILL PILL, this is not a violent crime.

I’ll close my screed with a story of a somewhat similar case I handled two decades ago.  Prosecutors thought they had a “strong case.”  They got an indictment and arrest warrant for my client.  They notified the press, who like obedient school children trooped out to my client’s place of business so they could get video footage of him being brought out in handcuffs.  The story was prominently featured on the evening news, and my client and his family were mortified.  Fast forward 6 months to the final day of trial, a few minutes after the jury found my client “Not Guilty” of all charges. No reporters were present.  The prosecutors did not issue a press release to say that they had unfairly tarnished the reputation of an innocent man. Fortunately, one honest reporter agreed to do a story about the acquittal, and featured it on the evening news.  Again, everyone needs to calm down and let the system work. Oh yeah, the press needs to go back to school and re-learn the lesson that just because someone from the Government says something, that does not mean it is is a true statement.

I fortunately get many calls from people about their criminal cases.  Some want a little free advice, some are looking to hire an attorney for the first time, and some are dissatisfied with the way their current attorney is handling the matter.  Here and here are posts I have published on questions that clients might want to ask when first deciding on whether they should hire a particular criminal defense lawyer.  

I always try to listen as much as possible when people contact me, especially if I already know the attorney who is already working on their case.  In many ways, I almost see myself like a marriage or relationship counselor when someone calls me and is complaining about the lawyer they already hired to represent them in a criminal matter. I try to identify why the client is not happy with their current lawyer, and want to see if the client is possibly having unrealistic expectations, or whether he for she is properly concerned about the advice our performance of the lawyer they want to replace.  Remember, we are all human, we all make mistakes, and even the best lawyers sometimes just don’t get along with all of their clients.  Whether the problem in the relationship is the client, the lawyer, or both of them, I always try to be sensitive to the fact that the client might well be better served if he or she keeps working with the attorney who is already on the case.

Changing lawyers is stressful, and often increases the client’s expenses.  When someone asks me to take a case over from another attorney, I essentially need to “re-learn” everything that the earlier lawyer already knows.  This takes time, and increases costs.  Sometimes, clients contact me after a case has been going on for quite a while, and I need to decide fairly quickly whether there is enough time for me to “get up to speed.”  Some Judges are sympathetic to letting a new attorney have enough time to take over and prepare, but not all are.

I try to help people, and if someone wants me to take a case over from another lawyer, I need to make a pretty quick decision as to whether that is in the client’s best interest.  Sometimes, I feel that I could make a difference and will take over the case, but there are other times when I advise the person to remain with their current lawyer.  As always, it is the best interest of the client that is the most important thing to consider in these situations.

First, let’s talk about the timing of when we get the materials that the prosecution is supposed to turn over to defense counsel.  For example, here in the Northern District of Georgia, we have a Local Rule that says discovery “shall” be turned over at the arraignment.  Don’t take my word for it, read Local Criminal Rule 16.1, it flatly says the prosecutors are supposed to make all this stuff available to the defense on Day One of the case.  This is a Rule that makes a lot of sense.  Prosecutors get to decide when they bring a case, and since they are presumed to be ready on Day One, it makes a lot of sense to require that they produce everything to the defense on that date.  Ah, but the reality is far different.  In my current case, they took five weeks to produce materials.  In another case it took 3.5 months to get me the evidence that I knew they had all along.  They rarely give any excuses, they just give it to me late, and ignore my repeated complaints.

Second, we should also talk a bit about the type of materials that are turned over.  I sound like a very old lawyer when I remind people about how discovery in most federal criminal cases consisted of a small folder with 100-200 pages of material when I began practicing law.  Everything is far different in the digital age.  Most of the time, we now need to provide at least a hard drive to hold all the materials that a prosecutor turns over as the discovery in a federal criminal case.  You would think that larger volume of material would help the defense, more is better, right?  Ah, but as I have mentioned before, the government likes to hide the meaningful stuff among the forest of irrelevant data.  More information actually results in more work for the already harried criminal defense lawyer handling a federal case.

Third, I also want to explain how rapid technological advances also greatly impacts not only timing and volume of discovery, it also can make the work more difficult by virtue of the method by which the material is captured, stored and disseminated.  I never cease to be amazed that the federal government seems to have some horrible people negotiate its software contracts.  Prosecutors then have to use these awful programs into which the discovery materials are crammed before the stuff is turned over to the defense.  When we on the defense side get the materials housed in this lousy software, we often have to basically unpack the whole mess and save it again in better software that makes it more accessible and searchable.  So, even if a prosecutor produces all the material in a timely fashion and does not try to hide the ball by including a mountain if irrelevant junk, we still are often hampered in trying to simply open and then use the stuff they turn over.

Rules versus reality.  Back to work for me and anyone who has enough time to spend reading this.

One of the biggest “rules” is based on a Supreme Court decision from 1963, the famous case of Brady v. Maryland,  373 U.S. 83(1963).  This rule applies to both federal criminal cases and those in the state court systems. The prosecutors conveniently “forgot” to hand over to defense counsel a statement made by Brady’s  co-defendant that Brady did not kill the victim, the other guy did it.  The Supreme Court said that suppression by the prosecution of evidence favorable to an accused who has asked for it violates due process if the evidence is “material” to guilt or to punishment, and it does not matter whether the prosecutor acted in good faith or bad faith.  Seems kind of simple, right, if the AUSA or DA has something which shows the the Defendant did not do the crime or should not be punished so severely, the “due process clause” from our wonderful Fifth Amendment  demands that the prosecutor give it up.

Now, here’s the reality, and I’ve always thought it is similar to the old expression about letting the fox guard the henhouse.  Lawyers, by our very natures, are competitive people.  We want to win.  Human nature tells us that if a prosecutor has evidence that undercuts his or her case, that DA or AUSA is less likely to want to turn it over than a more independent person.  But, here’s the crazy part of the “rule” as it has been modified over the years.  The DA or AUSA is the person who decides to turn it over (see what I mean about the fox guarding, etc).  Defense counsel might never even know about the exculpatory stuff if the prosecutor (and his or her agents) successfully bury the materials in files that are never turned over.  Even “good” prosecutors can fail to appreciate how some evidence or information is exculpatory, because they are looking at everything through a different lens than the criminal defense attorney.

The problems with the Brady rule are not something dreamed up by yours truly.  I have had multiple cases over the years where through dumb luck or perseverance we found exculpatory evidence which the prosecutor had in his files all along (yet he once more forgot to let me know about it).  Another question is sometimes asked: what does the Judge do when it is proven that the prosecutor broke the law by not turning over evidence that shows the Defendant did not do the crime?  In 99% of the cases, NOTHING.  There are a few high-profile matters where the prosecutors got into trouble, but the vast majority suffer no adverse consequences by hiding the ball from defense counsel.

Another rule comes from the Supreme Court case of Giglio v. United States, 405 U.S. 150 (1972).  The Court said that the prosecutor’s failure to let everyone know that a witness had been promised not to be prosecuted in exchange for his testimony was a failure to fulfill the duty to present all material evidence to the jury, thus violating due process.  This is the rule even if the prosecutor’s hiding of the “deal” with the witness was done out of negligence and wasn’t intentional.  We often use the term Giglio material when talking about any deals that witnesses in a criminal case may have entered into with the government.

Now, the reality of the Giglio rule.  I’m working on an older case where shortly before trial the AUSA sent a “target letter” to a person they really wanted to use as a witness against my client.  The guy had previously declined to say anything.   So, prosecutors sent him a target letter, which tells that person (and his or her lawyer) that the government is seriously considering bringing a federal criminal case.  Amazingly,  the target wakes up,  smells the coffee, and conveniently “remembers” a conversation with my client from ten years earlier!  The prosecutors claim they are following the law by telling defense counsel about the target letter, but we all know the real deal was worked out between the AUSA and the target’s lawyer, nothing in writing that would have to be turned over, but when the target amazingly recalls the decade-old “talk” with my client, no criminal case is ever brought.  It’s enough to make me sick sometimes.

I need to get back to reviewing then discovery materials in this case I’m working on.  I’ll write more in a few days about some other ways that reality is different than the rules in a criminal case.

The internet has gone wild over the jury trial and partial verdict involving Mr. Manafort, and anyone who has wasted time reading this blog knows about federal sentencing hearings and trials, and likely understands that Manafort’s sentence can be calculated as if he was found guilty of all the charges.  That’s right troops, the hung jury on 10 of the crimes makes no difference because under the foolish experiment called the Sentencing Guidelines the Judge can sentence Paul based on conduct that he was even found not guilty of committing!  I remember a case I handled around 20 years ago where I won most of the charges but the prosecutor, referring to the rule authorizing use of acquitted conduct, asked for a much longer sentence.  The judge agreed with me, pointing out that Mr. Kish “cheated them fair and square at trial.” That Judge always made me laugh, at least until he ruled against me or gave my client a lengthy sentence. 

An attorney for President Trump, Michael Cohen,  has pled guilty to, among other things, supposedly structuring some payments for the benefit of the “candidate” during the 2016 presidential election campaign.  I’m not going to weigh in on politics in this case or the process or likelihood of some later “cooperation” by Mr. Cohen.  Instead, I want to talk about the sad fact that a member of the bar admitted to committing a crime.  Lawyers sometimes get a bad rap, and there’s lots of nasty jokes, e.g., “what do you call 100 attorneys at the bottom of the ocean?–a good start, ha ha!” However, my experience has been that the vast majority of attorneys are among the most honest people in our society.  Sure, we have to be aggressive from time to time and need to press an argument to the point where it sounds stupid occasionally, but that is how the system works.  Our clients need for us to be aggressive, because the lawyers on the other side of the courtroom are doing the same for their clients.  I feel bad when a criminal case involves an attorney who crossed the line from advocacy to crime, for these cases perpetuate the unfortunate stigma attached to our otherwise honorable profession.

Finally, we get to Ms. Winner’s sentencing hearing this afternoon in Augusta.  I know one of the lawyers in the case, went to law school with the Judge, and have matters against the prosecutor’s office that handled the case for the government.  Just like the Manafort and Michael Cohen cases,  Ms. Winner’s situation was made more difficult because of the intense public scrutiny.  I have now way of knowing whether the “deal” or her ultimate sentence were fair or not.  I only know that all of the professionals, meaning the attorneys in the case, had a difficult time because of the publicity and national security aspects of the case.

Most good criminal defense lawyers prefer that their cases not involve a lot of publicity or notoriety.  The lawyers in these three cases had no choice and needed to do their jobs in spite of the white hot glare from the spotlights.  It makes the work more difficult.

To begin with, there is a huge difference depending on whether the criminal case is in state court or in the federal arena.  State cases are generally creatures of the county in which the crime happened.  For the most part (unless a statewide agency such as the Medicaid Fraud Control Unit, or “MFCU”, is involved) the case is brought by the county’s District Attorney.  As a general rule, trials have to be in the county where the crime happened.  The jurors only come from that single county, whether it is a huge place like Fulton or Dekalb, or a small rural county far from a large city.  This means that in the smaller counties the jurors often know of or have heard something about either the crime, the Defendant, or some of the attorneys. Federal criminal cases, on the other hand, are handled by “Districts.”  Georgia has three separate federal judicial Districts, Northern, Middle and Southern.  Atlanta is in the Northern District, and there are then four “Divisions”: Gainesville, Rome, Atlanta and Newnan.  Jurors come from the counties in each Division, but that can mean jurors in DeKalb will sit with jurors from Rockdale all on an Atlanta Division case in the Northern District.  The bottom line is that federal jurors came from a wider array of locations and backgrounds.

Another distinction is the method used for selecting jurors.  We lawyers call this “voir dire“, which are supposedly old English words but others claim the expression comes from Latin. Essentially, voir dire is a process by which both sides get to question prospective jurors to see if one side wants to exclude that person from sitting on the jury.  Depending on the jurisdiction, each side gets a certain number of “strikes”, meaning that they can knock that number of people out of consideration for being on the jury.  The questioning involved in voir dire in a state criminal trial is much different than what happens in federal court.  State judges tend to let the lawyers have free reign, asking a wide variety of questions of each individual juror who is up for consideration.  Federal court is much more restricted, and sometimes the Judges won’t let the lawyer ask any questions at all, the Judge will handle all the juror questioning.  As a result, federal jury selection often happens in a matter of hours, while the state counterpart often takes days.

Another thing to remember is that the lawyers are not really “picking” a jury.  Remember, they have a certain number of “strikes” after which the next 12 available people are on the jury.  The process of striking people until both sides are down to 12 people for whom neither side had a huge problem basically means that the lawyers are really choosing the 12 least objectionable individuals for a jury.

What do lawyers consider when striking possible jurors? That is a huge subject, but for the most part the lawyer is trying to get rid of a juror whose life experiences or opinions show that he or she would be likely to vote for the opposing side in the case.  The other side’s attorney is doing just the opposite, so, as just mentioned, the jury ends up with 12 rather average folks that neither side has a huge objection to serving on the jury.

After almost 100 trials, I still think that jurors all try to do their job as best as they can.  However, people are fallible, and sometimes they get it wrong.  Still, it is probably the best system out there.

For starters, everybody is entitled to a trial on criminal charges, it says so right in the Sixth Amendment.  However, the almost unmatched power of federal prosecutors brought about by various statutes enacted by Congress, along with the draconian Sentencing Guidelines, means that even innocent people are now pleading guilty.  The report sets out what I already know, those who plead guilty get far less punishment.  The report notes two seemingly equal Defendants, one who “flipped” and cooperated against the other who went to trial.  You guessed it, the flipper gets a couple of years, the Defendant who had the gall to assert his Constitutional right to trial got 45 years! My own recent experience is the same, my client got ten years while the far more culpable co-Defendant who pled guilty and testified got a mere 24 months!

The NACDL report concluded that guilty pleas have replaced trials because anyone who exercises his or her right to take the case to a jury is facing “exponentially higher sentences.” Defense lawyers and prosecutors now spend most of their time “negotiating”.  Judges rarely preside over trials, and therefore have no or very little experience when such a case comes before them.  However, when just about every case ends after a long negotiation instead of a public trial, we all lose.  The public no longer sees the facts of a case.  Prosecutors no longer have to prove their allegations beyond a reasonable doubt.  And, most importantly, some clearly innocent people will “take a plea” instead of taking the chance that their life will be ruined by an excessively long sentence.  Like the Endangered Species Act, we need a new law to prevent the extinction of the right to trial.

OK, class, let’s remember the basics.  A federal criminal sentencing hearing involves more than just the amount of time a person might have to go to prison.  A federal judge can also impose three distinct types of financial orders that require payment.  First there is a “fine”, which usually can be up to $250,000 per count, this money is considered “punishment” and the payment goes directly to Uncle Sam.  Next, there is “restitution”.  This is supposed to pay back victims any loss they suffered from the crime, and while the Defendant pays this money to the Clerk of the Court, the money goes back to the victim eventually.  Then, we have the often misunderstood “forfeiture.”  Under the current version of this old doctrine, property used in or obtained as a result of a crime belongs to the government from the moment the crime took place.  If that property has been used up (or in the case of real money, has been spent) then the government can try to get an equal amount out of the Defendant using the “substitute assets” rule.  The forfeiture payments also go right to the U.S.  And, here’s the kicker: if a Defendant is able to pay, he or she can be forced to pay all three amounts for the same crime, meaning triple whammy for any person of means who is convicted of a federal offense.

Now to our recent decisions discussing some of these financial aspects of federal criminal sentencing.     In United States v. Green 16-3044-2018-07-31, the Defendant’s Mom got VA benefits, and when her mother passed away, Ms. Green kept spending the monthly check without telling the VA. This went on for many years, and it took many years more before the government got around to charging her with a crime in New York.  Ms. Green was required to pay restitution, but the question was how far back did her restitution obligation go, especially since many of the monthly payments were outside the 5-year statute of limitations?  The prosecutors argued that embezzlement of this sort is a “continuing crime”, meaning that they wanted her to pay restitution back to the point when the Defendant’s mother died. Nope, said the Second Circuit, only those within the limitations period qualify as restitution.

Next we have US v. Bradley 17-5725-2018-08-01[1],  involving the separate concept of forfeiture.  The conspiracy in Michigan and Tennessee netted around $1 million, and the Judge made Mr. Bradley jointly and severally liable for the whole amount, meaning anything his co-defendants did not pay he would be on the hook for.  A big forfeiture case handed down last year by the Supreme Court invalidated this, noted the Sixth Circuit: “The two requirements of the statute, the Court observed, ‘limit forfeiture under § 853 to tainted property’ and ‘define[] forfeitable property solely in terms of personal possession or use.’… But joint and several liability puts defendants on the hook regardless of their share of the fault or the proceeds, meaning it would require forfeiture of untainted property’ as well as amounts the defendant did not ‘obtain[].'”  Last year’s Supreme Court decision  “…puts an end to such collective liability.”

Finally, we have a case out of the Eighth Circuit, US v. Mann 17-2060-2018-07-27[1]  .  Technically, this is not a “criminal forfeiture” case, because the forfeiture of 93 weapons discussed came about years after Dr. Mann was convicted in Arkansas for placing a grenade in a tire leaning up against the vehicle of another doctor.  However, the case is interesting for one major reason.  At trial, Dr. Mann was charged with yet found not guilty of possessing a certain shotgun.  Then, the government brought a civil forfeiture against the shotgun, arguing that it belonged to the government.  Amazingly, winning the criminal charge did not prevent the government from prevailing in its civil forfeiture action regarding the shotgun. Go figure, or a client once said to me: “it’s the US versus me, we are in a US Court and the Judge is paid from the US treasury, yeah, this should be fair!”

Back to my reading…

First, the maddening aspects of the rules themselves.  By the language of the rules, the only “evidence” that the prosecutor has to hand over to the defense prior to trial in a federal case is limited to documents and materials that the government intends to use at trial, the results of any expert testing, and any statement made by the defendant to a known law enforcement official. The Brady rule also says they have to turn over any information tending to show that the Defendant is not guilty, but they actually are not required to turn it over prior to trial, and only have to reveal this exculpatory information to the defense so that the attorney at least has some time to make use of the evidence.  Note, this limited list of information does NOT include the names or statements by witnesses.  The utterly absurd Jencks Act (a vestige of the 1950’s!) says that the prosecutor only needs to provide a witness’s prior statement to the defense AFTER the witness has finished his government testimony in a trial.  Talk about trial by ambush.

The rules and constitutional principles that impact discovery, along with the data-driven explosion of information, have led most federal prosecutors to basically ignore the old days and provide lots of information up front to the defense lawyer.  Nowadays they even give us witness names and their statements, figuring we are going to find out anyway so why play “hide the ball.”   From the old days, when we basically learned very little, we have come to the modern era, where prosecutors dump so much data on the defense that a single attorney is disadvantaged, unless he or she is very technologically capable and assisted by highly skilled support staff (like the wonderful folks with whom I work).

But, even when a modern federal criminal defense lawyer has the tools and staff to access, search and then categorize the relevant information out of the mountain of data a prosecutor turns over, that same lawyer is then confronted with never-ending technological problems from the prosecution’s side.  For many years, the government produced all of its discovery in this absolutely horrible program that required the reader to look at each page individually, without the ability to search the entire database.   We figured out some work-arounds over the years, but now there is a completely new problem: multiple formats from multiple agencies.  That’s right, different law enforcement agencies use completely different formats and tools for recording and transmitting information.  We are currently trying to figure out how a group of videos from various agencies can be accessed, and my tech folks are also pulling their hair out.

So, if you see a bunch of bald men and women in lawyer suits heading to court, just know that they are likely federal criminal defense lawyers in the middle of plowing through their own discovery.

The local federal prosecutors have their website where they give out their “news,” such as announcing a new set of charges or that someone got convicted and sentenced.  Here is a recent one announcing the guilty plea by my client. Note that it is a pretty straightforward account of the case and that my client has agreed to plead guilty.  Now, what happens is that these “press releases” are obtained by various news organizations and internet news sites.  Some newspapers and sites are devoted to legal news, and the reporters for these organizations tend to be very good and very well-aware that a press release is only one side of the story.  For example, here is the story written by a reporter working for a well-respected local paper devoted to legal news which discusses this recent case involving my client.   Note that this story is written by a reporter who not only read the prosecutor’s press release, she actually wanted to hear both sides and called me for my reaction, which is mentioned in the story.

The problem, of course, is that all of this works its way on to the internet.  I have no problem with the dissemination of truthful and accurate information, that is a good thing.  However, big problems happen when at the early phase of this process a prosecutor or reporter decides to cut corners.  Some prosecutors do far more than issue a well-honed and accurate press release. Instead, these prosecutors say all sorts of incendiary things to reporters who lap it up like kittens at the milk bowl in order to publish a story with some juicy quotes.  Then, less scrupulous internet sites further disseminate the inflammatory parts of the story, and subsequent readers only hear one side, a side that is frothing at the mouth (kind of mixing my metaphors with the kittens at the bowl, but you get the idea).

So, while I am not one of those attorneys who always wants to get quoted or put on TV or radio, on occasion I do feel it is worthwhile telling my client’s side of the story to a well-respected reporter who I know is trying to do an objective piece of journalism.  I also feel that lawyers have an obligation to clear up stories that turned out differently than the way they were portrayed at the beginning of a case.  We all know about cases where the press are all over the Defendant when she or he is arrested, and brought shamefully to the courthouse.  However, what happens when that same person is later found “not guilty.”  That happened to a client of mine a few years back, and after the verdict I called the TV reporter who had made such a big deal about the original charge.  To his credit, the reporter did a full story announcing that the jury found my client not guilty.  Unfortunately, too many reporters are not that upstanding, and the internet is used by people who are often less interested in the truth than their own point of view.  In other words, be wary of what you read!

Life in general is quite different than the day in 1982 when I became an attorney at law.  I had more hair, it was a different color, had no children, and was plagued by fewer worries.  Now, me, my graying hair and always opinionated kids live in the data-driven world where devices are always at our reach, information can be summoned at a moment’s notice from a variety of fora, and individual privacy is a thing of the past.  I’m not complaining, progress is good.  However, these many changes have greatly changed law and lawyering. Practicing law is now much more fast-paced, but likewise the data revolution has made me far more efficient.  

While we have more equipment and information than what was available back in 1982, many things are unchanged.  For starters, the kind of law me and my law partner Carl practice is people oriented.  People are the same, they bring their worries and problems to a lawyer, hoping for answers and solutions.  A good lawyer needs to listen, understand,  and try to help clients, skills that never go in or out of fashion.

I was also struck with the changes in the subjects I have blogged about over the past decade.   Anyone foolish enough to go back and look at what I wrote back then will see I regularly railed against the idiotic war-on-drugs sentences.  Those changed, a little bit, but it now appears we are heading back to those bad old days in the near future.  Also, I noticed that over the years my writing focused more and more on technical, data and device-related legal issues.  Like many of us, I am fascinated at how we apply concepts from the 18th century enshrined in our Constitution (like the Fourth Amendment’s promise of no search or seizure except if based on “probable cause”) with modern issues (such as the FBI wanting help from the Apple corporation in unlocking an encrypted phone belonging to a terrorist killer).

To the odd reader out there in cyberspace, thanks, and stay tuned.  The next decades should be even more interesting.