When to Appeal Privilege Claims – State and Federal Differences

Posted on February 13, 2012 by Hayes Hunt — No Comments ↓

Supreme Court.jpg Contributed by Thomas Wilkinson, Jr. and Issa Mikel

In Commonwealth of Pennsylvania v. Harris, No. 8 EAP 20098 (Pa. 2011) (McCaffrey, J.), the Pennsylvania Supreme Court reaffirmed its prior rule that orders overruling claims of privilege are immediately appealable as of right under Pennsylvania law, rejecting a recent U.S. Supreme Court opinion to the contrary.

Francis Harris was found guilty of first-degree murder and sentenced to death for the killing of a witness who was scheduled to testify against him in a trial on aggravated assault charges. After affirmance of the sentence, Harris filed a petition under Pennsylvania’s Post Conviction Relief Act. He argued that his attorney in the criminal trial had ineffectively introduced the testimony of a psychologist hired to testify at the sentencing hearing about past psychological trauma suffered by Harris.

The Lackawanna County Court of Common Pleas ruled that Harris had waived privilege as to the psychologist’s testimony and granted the Commonwealth’s request to subpoena the psychologist as well as retain him as an expert witness. Harris appealed to the Pennsylvania Supreme Court. The Supreme Court, affirmed in part and reversed in part, holding that the Commonwealth could subpoena the psychologist to testify to the extent Harris had waived any privilege, but that the Commonwealth could not retain him as an expert.

Significantly for trial attorneys and litigants alike, the Court affirmed its earlier ruling in Ben v. Schwartz, 729 A.2d 547 (Pa. 1999), that orders overruling claims of privilege were immediately appealable as of right. In Ben v. Schwartz, the Court had applied Pennsylvania Rule of Civil Procedure 313(b) to find that orders overruling claims of privilege met the three-pronged test to qualify for interlocutory appeal as collateral orders.

But in 2009, the United States Supreme Court decided Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (U.S. 2009), the first opinion authored by Justice Sotomayor. In Mohawk, the Court refused to allow interlocutory appeals of privilege rulings in the federal courts, holding that under the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), such appeals were not “effectively unreviewable.” The Mohawk Court ruled that “postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege,” and that “Section 1292(b) appeals, mandamus, and appeals from contempt citations facilitate immediate review of some of the more consequential attorney-client privilege rulings.”

In Harris, the Pennsylvania Supreme Court rejected Mohawk’s reasoning that postjudgment appeals were sufficient to vindicate claims of privilege and would instead inhibit clients from having frank discussions with counsel. As the Court stated, “[o]nce putatively privileged material is in the open, the bell has been rung, and cannot be unrung by a later appeal.”

The Harris Court also rejected the notion that the alternative methods of obtaining review of orders rejecting claims of privilege were adequate in the normal course. The Court stated that “the alternate methods for obtaining interlocutory review that the United States Supreme Court noted are either insufficient to preserve the vitality of privileges, or are not available in Pennsylvania law.” As for interlocutory appeals by permission, “[i]t is foreseeable that in some cases, the privilege claim will be thought insufficiently ‘controlling’ or persuasive to justify an immediate appeal, or that an immediate appeal of what is ordinarily a discovery order will not hasten the end of the case.” Regardless, the Court argued that without immediate appeal as of right, “the frank discussions that privileges are meant to protect will be chilled.” As regards mandamus, the Court noted that it is “generally not available in Pennsylvania law as a vehicle for obtaining appellate review.”

Finally, the Court rejected the notion that disobeying a disclosure order and appealing any contempt sanctions sufficed to protect a claim of privilege. “That method would require parties to expose themselves to the full range of sanctions from fines to imprisonment,” which are “too likely to coerce parties unfairly into abandoning meritorious claims of privilege to adequately serve the ultimate aim of any privilege – unfettered disclosures in particular circumstances.”

In a concurring opinion, Justice Saylor wrote that “I previously expressed my own preference that discovery orders requiring production of assertedly privileged material generally should follow the permissive appeals route,” but that he nevertheless “supported the application of the collateral order doctrine based on Pennsylvania precedent.”

Thomas G. Wilkinson, Jr. is a member of Cozen O’Connor’s Commercial Litigation Practice Group and heads the firm’s alternative dispute resolution practice. He concentrates his practice in business litigation, business torts, complex insurance coverage, and professional responsibility matters.

Issa Mikel is an associate in the firm’s Commercial Litigation Department.

Hayes Hunt

GPS Tracking Devices, Technology & Privacy: U.S. v. Jones

Posted on February 6, 2012 by Hayes Hunt — No Comments ↓

By Hayes Hunt and Calli Varner

Ongoing advances in modern technology consistently change the way we think about our privacy rights. The proliferation of the use of GPS tracking devices used by law enforcement officers and private citizens is no exception. While obviously beneficial for government agents to track suspects, these devices can also ease the fears of a parent of a teenage driver or a child of an elderly parent still navigating the roads. On the other hand, though less ethical, these devices can legally be used to track the movements of estranged spouses or to stalk others.

In an attempt to create some boundaries, the Supreme Court evaluated the constitutional limits on the use of these devices by law enforcement officers in the recent case of United States v. Jones, No. 10-1259 (U.S. Jan. 23, 2012).

In Jones, Defendant Antione Jones, the owner of a nightclub in D.C., came under the suspicion of law enforcement for trafficking narcotics. To track his activities, the Government applied for a warrant authorizing the use of an electronic tracking device on a car registered to his wife. The warrant was issued, giving the Government authority to install the device within 10 days. On the 11th day, officers installed the device on the car while parked in a public lot in Maryland. As a result, the device was installed without a proper warrant. Over the next 28 days, the Government used the device to track the vehicle resulting in more than 2,000 pages of data. The lower court suppressed the GPS data obtained while the vehicle was parked at Jones’ residence; however, the remaining data was admissible, according to the court, because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted and sentenced to life imprisonment.

The Supreme Court held that GPS monitoring constitutes a search within the meaning of the Fourth Amendment. The Court did not hold that a warrant is always required. The Court, however, did strongly suggest that the long-term monitoring of a GPS device will require a warrant, but a warrant would not be required if the GPS device is only monitored for a day or two.

While this decision has put law enforcement officers on notice that it is advisable to obtain a warrant prior to the use of a GPS tracking device, it challenges long-standing Fourth Amendment jurisprudence as we know it. As Justice Alito points out in his concurrence, the Fourth Amendment hinges on whether a person has a “reasonable expectation of privacy,” the test set forth in the Court’s 1967 decision in Katz v. United States, 389 U.S. 347 (1967). How is it, then, that a person has a reasonable expectation of privacy when a GPS device is monitored long-term but does not when the device is only monitored for one or two days? Clearly this is an example of the Court’s current struggle to balance traditional privacy rights with modern technology. As Justice Alito points out, “New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.”

Calli Varner is an associate in the firm’s Commercial Litigation Group.

Hayes Hunt

Tagged with: Client, Fourth Amendment, GPS Tracking Devices, privacy, Search Warrant, Supreme Court, Technology and Law, US v. Jones
Posted in Prosecution & Defense

New Year – New Rules of Evidence: Plain Language in the Law

Posted on January 30, 2012 by Hayes Hunt — No Comments ↓

Old Typewriter.jpg By Hayes Hunt and Brian Kint

New “restyled” Federal Rules of Evidence went into effect on December 1, 2011. These rules were designed to be easier to read and understand while remaining substantively unchanged. This update reflects the growing “plain language” trend, a movement that seeks to make government more accessible by using language that is concise, clear, and free of technical terms. In fact, the need for plain language in government is one of the few things that a divided Congress has been able to agree on in recent years, passing the Plain Language Act of 2010. The Act requires that government agencies write documents in clear, concise, well-organized language, appropriate for the intended audience.

The restyling of the Federal Rules of Evidence, however, represents a new frontier in the plain language crusade, because rules of evidence are used primarily by lawyers, a group largely responsible for the rules’ convoluted language and accustomed to working through their intricacies. Some lawyers may believe that the precision and formality of the law requires complex language that is beyond the common person’s comprehension. The plain language update to the Federal Rules of Evidence challenges that presumption. Here are some examples:

Old Rule 613(b)

“Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.”

New Rule 613(b)

“Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.”

The new rule uses the possessive, removes the negative, and replaces the words the same and thereon, to make the rule easier to read.

Old Definition of “Recorded Recollection”

“A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.”

New Definition of “Recorded Recollection

“A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge.”

Here, the drafters rephrased the rule and organized it into discrete elements to make it easier to comprehend. These examples represent the types of changes made throughout the rules.

Now that the Federal Rules of Evidence have been converted into plain language, state rules of evidence are sure to follow. It remains to be seen if the rule drafters have done their job or if attorneys and courts will find novel ways to interpret the new language of the law.

Hayes Hunt

Tagged with: Federal Rules of Evidence, Plain Language Act, Recorded Recollection, Rule 613 (b)
Posted in Evidence

Mississippi Clemency and Presidential Pardons

Posted on January 20, 2012 by Hayes Hunt — No Comments ↓

By Hayes Hunt and Catherine Hamilton

Former Mississippi Governor Haley Barbour granted clemency to over 200 people prior to leaving office. Among those receiving a full pardon were over a dozen convicted murderers and five men who worked for the Governor at his mansion. Victims’ rights advocates and the families of those slain by the convicted murderers have, understandably, voiced opposition. Mr. Barbour’s clemency decisions involved an unusually high number of pardons for those found guilty of violent crimes, including murder, manslaughter, and rape. Pardons are typically reserved for less violent crimes.

Others are bothered by the Governor’s acts of clemency for the five individuals who worked for the Governor as “trusties.” The idea of “trusties” certainly invokes historically negative stereotypes of the South and prison labor. Think Paul Newman in Cool Hand Luke. Those inmates lucky enough to be chosen as “trusties” to work at the Governor’s mansion have an unfair opportunity to garner favor in an effort to strengthen their chances for a pardon. Barbour considered his pardons for the trusties to be appropriate based on “tradition.”

Mr. Barbour’s clemency decisions have also been challenged by the State Attorney General on the grounds that the state-required public notice provision was not followed. In response, a state judge has temporarily blocked the release of 21 prisoners.

Presidential pardons avoid some of the problems raised by the former Mississippi Governor’s acts. The first pardons granted by President George Washington were to Pennsylvania farmers involved in the Whiskey Rebellion in 1794. Alexander Hamilton discussed pardons in The Federalist Papers as a tool to quell rebellion.

Mt Rushmore.jpg Today, those still serving their sentence are not permitted to seek clemency. Now, at the federal level, there is a five-year waiting period for petitioners seeking clemency from the President. 28 C.F.R. § 1.2. The basis for granting a pardon for a federal crime is the “demonstrated good conduct [of the petitioner] for a substantial period of time after conviction and service of sentence.” United States Attorneys’ Manual, § 1-2.112.

At the federal level, there is input from many as opposed to just one. Petitions for pardon are addressed to the President of the United States but submitted to the Pardon Attorney. 28 C.F.R. § 1.1 The Pardon Attorney reviews and investigates the petition, and prepares a DOJ recommendation. In addition to the President and the Pardon Attorney, the United States Attorney is often involved in the analysis of a petition for pardon. For instance, the U.S. Attorney may provide insight into the petitioner, including his/her wrongdoing, involvement in other criminal activity, reputation in the community, as well as information concerning the victim. United States Attorneys’ Manual, § 1.2111.

Mississipi should take a look at the federal pardon standards and consider reform over tradition.

Catherine Hamilton is an associate in the firm’s Commercial Litigation Practice Group. Catherine also worked as a law clerk for the Hon. Harvey Bartle III of the U.S. District Court for the Eastern District of Pennsylvania.

Hayes Hunt

Tagged with: Clemency, Governor Haley Barbour, Mississippi, Pardon Attorney, Presidential Pardons
Posted in Prosecution & Defense

When ‘The Law’ Is in the Lobby: Practical Steps to Manage A Raid by Gov’t Agents

Posted on January 11, 2012 by Hayes Hunt — No Comments ↓

Published in The Legal Intelligencer’s General Counsel Section January 11, 2012

By Hayes Hunt and Brian Kint

It is 7 a.m. You grab a cup of coffee and head out the door to catch the train to your job as in-house counsel. As you take your seat on the train, you pull out your BlackBerry to review your calendar. Meanwhile, in a nondescript parking lot, a group of FBI agents are readying for their day’s work as well … the execution of a search warrant at your company.

The lead agent phones the U.S. attorney’s office to go over the details of the warrant one last time, while subordinate agents busily check their weapons and don their trademark blue and yellow warrant jackets. As you are stepping off the train, the agents are stepping out of their black SUVs. When you get to the office, you realize that this will be no ordinary day. The FBI is here, and agents are swarming like locusts throughout the building. Agents are rifling through filing cabinets, firing off a barrage of questions to your employees and hauling what seems like a continuous stream of boxes out the door, while people on the street are taking videos and pictures on their phones and publishing them on Facebook.

Welcome to a government raid.

It is a scene that plays out countless times across the country each year. What a company does — and does not do — in the early moments of such a visit and as the search is being conducted likely will have profound consequences for the company. Knowing how to handle this situation is essential. This article offers practical steps you can take when government agents come to serve a search warrant so that you can better manage what may seem like an unmanageable situation.

To most, dealing with law enforcement is unfamiliar and stressful under any circumstance. When serving a search warrant, however, law enforcement agents may add to this stress by coming heavily armed and using military-type “shock tactics.” Agents may feel the need to launch a search quickly and without warning to prevent the destruction of documents or the hiding of evidence. Even so, being subject to a search warrant does not completely eliminate the rights of the person or company being searched. Complying with the law while knowing and asserting your rights will allow you to respond successfully to a search of your company.

The only way to handle this situation competently is to ensure that you and other employees are ready and calm. While the presence of a sizable group of armed law enforcement agents can be overwhelming, not being prepared for a search situation can have disastrous effects on a company’s well-being. Take the time now to form a crisis management team, develop a response plan, draft an e-mail to all employees so it is ready to distribute at a moment’s notice, and train key employees to manage the execution of a search warrant.

Above all, never consent to a search. Consent could later be used to allow the use of evidence that was seized improperly or was outside the scope of the warrant. While a valid warrant does give law enforcement agents the right to be there and seize certain materials, it also limits the scope of the search. Any consent could be used later to circumvent that limitation.

When agents arrive to conduct a search, your first step is to identify them and the target of the search. Find out what individuals and agencies are involved. Identify the lead agent and get his or her name, title, phone number and business card. Ask to see the agents’ credentials or badges. If the company has a security policy, ask the agents to sign in just as you would any other visitor and, if possible, to wait for in-house or outside counsel to arrive. This will not only give you a list of all the agents involved, but also slow down the process and provide you an opportunity to notify outside counsel and members of the crisis management team.

Ask for a copy of the warrant and read it carefully. You are entitled to receive a copy of the warrant under Fed. R. Crim. P. 41(f)(1)(C) and Pa. R. Crim. P. 208(A). Do not allow the agents to begin the search without providing you with one. The warrant should list the exact premises to be searched and the items to be seized, and it may contain time limitations on conducting the search. It should list and be signed by the issuing authority, usually a judge. Check all of this information carefully. If the warrant is deficient in any way, including listing an incorrect address, tell the agents to leave, then immediately contact the person who issued the warrant. If all of the information is present and correct, however, you are obligated to comply with the terms of the warrant.

Notwithstanding this legal obligation, you can — and should — control as much of the situation as possible. Instruct the agents that they should not interview employees without the company’s lawyer being present. Send non-essential employees home to prevent officers from attempting to interview them. If you wait until after the search has commenced, employees may need permission from the agent in charge before leaving. Inform the employees who remain that the agents may try to ask them questions. Let employees know that they have the right to decline to be interviewed, but if they consent, they have the right to have a lawyer present. Let them know that in-house and outside counsel will be available in a conference room to address any concerns during the search. Again, you should have a draft e-mail containing this information and explaining employees’ rights ready to distribute should a search warrant be served.

Monitor the agents once they have commenced the search. If possible, assign the agents to a conference room or office, and ask them to limit their activity to this location as much as possible to avoid disrupting business. Assign designated employees to assist agents in locating documents. Take copious notes as to places searched, employees talked to, things said, and questions asked. Get copies of documents that are essential to carry on business. Protect information that you believe is privileged or outside of the scope of the warrant. If you believe the agents are improperly seizing privileged material, such as attorney-client communications or trade secrets, object to the lead agent and make a note of your objection.

Remember, do not interfere with the search even if the agents seize items you believe are protected or outside the scope of the warrant. Any interference could be seen as obstruction of justice. Simply object to the seizure of the items and note your objection. This will lay the foundation for later contesting the seizure in front of a judge, and it may be used to establish a case of agent misconduct. When the search is complete, you are entitled to an inventory list of all seized items. However, do not sign the inventory list or anything suggesting that it is complete and accurate.

Nobody wants to see their company be the target of a government investigation and search. We all like to think that our employers or our companies are above reproach. However, those who do nothing to prepare for this possibility, believing it will never happen to them, will be in the worst position to respond to and mitigate the effects of a government raid. On the other hand, those who have a response plan in place and are prepared to control and monitor the search once it commences will be in an excellent position to minimize the damage done by the execution of a search warrant.

Hayes Hunt

Tagged with: Corporate Counsel, General Counsel, In-House Counsel, Law Enforcement, Search Warrant, Seizure
Posted in Prosecution & Defense

Criminal Bullying: Army Soldier’s Suicide Leads To Homicide Prosecution.

Posted on January 5, 2012 by Hayes Hunt — No Comments ↓

By Hayes Hunt and Brian Kint

The Army has charged eight soldiers in connection with the death of fellow soldier, Private Danny Chen. Allegedly, these soldiers threw rocks at Private Chen, taunted him with ethnic slurs, and made him do pull-ups with a mouthful of water. Later that evening, Private Chen was found dead in a guard tower with “an apparent self-inflicted gunshot wound.” The Army charged the eight soldiers with manslaughter and negligent homicide even though Private Chen’s death was an apparent suicide. Such charges in these circumstances raise interesting questions of culpability and criminal causation.

Generally, the law will hold a defendant criminally accountable for homicide only when the defendant’s actions are the proximate cause of the victim’s death. Say, for example, you push someone off a bridge. Here, the connection is easy to make because your actions are the direct cause of the victim’s death. Such a case exists in the alleged hazing death of Florida A&M University drum major Robert Champion, where the victim’s death resulted from the physical injuries sustained during a brutal hazing episode.

Next, say you tell someone he should jump off a bridge because he is overweight, and he jumps. Now, the causal connection is more difficult to make because your actions are only the indirect cause of the victim’s death. In these cases, the defendant’s actions may simply set into motion a chain of events that eventually leads to the victim’s death. At some point, however, the victim’s death is so remote from the defendant’s actions that holding the defendant criminal responsible for the death is inappropriate.

But say you tell someone he should jump off a bridge because he is overweight, you expect that he will jump when you tell him this, and he jumps. Now, your actions combined with your expectations could push you across the line of being criminally responsible for the victim’s death. This is the standard confronting prosecutors in Private Chen’s case. Because the eight soldiers did not directly cause Private Chen’s death, to convict them of manslaughter or negligent homicide, prosecutors must show that the suicide was the foreseeable result of the hazing. That job is made more difficult because the hazing took place in a military organization in which the lines between hazing, training, discipline, and team building are anything but clear. Furthermore, Private Chen committed suicide in Afghanistan – a combat zone where the stresses, emotions, and pressures that could lead one to suicide are multiplied tenfold. All of these considerations could easily create a reasonable doubt in the mind of a judge or jury member.

Is it appropriate, then, for the law to hold these soldiers accountable for not only the hazing itself, but also their victim’s suicide? There are a growing number of high-profile cases in which bullying leads to the victim’s suicide. These cases include the suicides of Rutgers student Tyler Clementi and Massachusetts teenager Phoebe Prince.

Traditionally, prosecutors have used civil rights, anti-harassment, or anti-bullying laws to hold accountable those who bully and harm others. The manslaughter and negligent homicide charges brought as a result of Private Chen’s death, however, may signal an emerging trend on the part of prosecutors to seek harsher criminal charges in these cases and to hold people accountable for not only the bullying or hazing itself, but also the self-inflicted deaths of those who commit suicide because of it.

Hayes Hunt

Tagged with: Bullying, Criminal Causation, Criminal Law, Culpability, Manslaughter, Negligent Homicide, Private Danny Chen
Posted in Prosecution & Defense

Attorney-Client Interview: Practice Points – Part 1 of 3

Posted on December 16, 2011 by Hayes Hunt — No Comments ↓

Client Interview.jpg Originally published in The Champion, November, 2011

Basics of a Client Interview

A lawyer can meet a client in many ways, including a referral by court appointment or in the waiting room of the lawyer’s office. For purposes of this article, let’s assume this is the lawyer’s first discussion with a potential client who is unfamiliar with the criminal justice system. This is a 360° interview — the lawyer and the client are evaluating each another. The client is deciding not only whether to retain the lawyer, but more importantly, whether he trusts the lawyer. Ultimately, will the client accept the lawyer’s advice?

The lawyer must not forget obvious etiquette. Desiring to make a good impression, the lawyer should dress the part. The lawyer should dress as if he is the one being interviewed, not the one asking the questions. He should wear clothes that he would put on if he were interviewing for a job.

Information Available Before the Client Interview

It is not unusual for the attorney to have very limited information prior to the interview. The attorney may have only an indictment, a criminal complaint, or bail paperwork. If lucky, she might have an affidavit or police report related to the charging documents. She should print out the criminal codes and statutes in advance since she will need to review the elements and definitions of each charged crime with the client. She should explain Rule 16, or the state equivalent, regarding the timing of discovery and the government’s disclosure obligations. Counsel should let the client know the procedural reasons for the lack of documentation at this stage and when she expects to receive more information. Depending on the charges, counsel may want to provide the client with a copy of the U.S.C.C. Sentencing Table or similar state guidelines.

Confident Lawyers Don’t Brag

Too many lawyers dominate the interview and, in doing so, fail to listen to the client. The lawyer’s job is to listen and advise, not overwhelm the client with big words or the salesmanship of convincing the client to hire the lawyer. Counsel will get to that crucial point with the client by establishing trust, not by barking like a chained junkyard dog looking for a fight. Self-aggrandizement is not necessary. Confidence is crucial, but bragging is for those lawyers who lack it. If counsel needs to tell the client he is a great lawyer, then counsel is not a great lawyer.

Chest-pounding and aggressive posturing served Tarzan well in the jungle, but those same traits are not valuable while interviewing the client. Conversely, if the attorney believes the client will hire him based on his ability to be loud and profane, the attorney should consider a different career. He is a lawyer, not a late-night comedian or talk show host.

Counsel should explain the basic principles of the attorney-client privilege. This is counsel’s opportunity to let the client know counsel is a zealous advocate in the client’s corner. The client must know that the attorney will not disclose information learned through privileged conversations. After talking about privilege, the client will likely be more candid about the matter at hand.

Defense counsel should not suggest he has a personal relationship with the judge or government lawyers. A professional relationship and experience, if any, with the court or prosecutor, are all that matters and prevents any ethical concerns. If counsel does not know the judge or the prosecutor, before the interview he should contact somebody that might know them.

My entire article was published on 11/11 issue of The Champion by the National Association of Criminal Defense Lawyers.

Hayes Hunt

Tagged with: Attornery-Client Relationship, Attorney-Client Interview, Client Communication, Criminal Law, Practice of Law
Posted in The Client

Attorney-Client Interview: Innocence, Jail and Canines – Part 3

Posted on December 16, 2011 by Hayes Hunt — No Comments ↓

Jail Doors.jpg Originally published in The Champion, November, 2011

Do You Believe That I’m Innocent?

On occasion, some clients desperately insist that their lawyer must believe they are innocent. A tempered response goes something like this:

Your innocence is not the standard. The burden of proof is beyond a reasonable doubt and it is the government’s burden.

Any verdict in your case will be “guilty” or “not guilty.” A judge or a jury cannot render a verdict of “innocence” or “not proven.” My ethical obligation is to be a zealous advocate for you and you alone. A rare exception to my duty will arise if you decide to testify and commit perjury, which you will not. What is right and wrong is a moral question, not an ethical one. If you are innocent, which you are presumed to be, we will need to prove it to the government to get your case dismissed. That proof of innocence can help in my conversations with the prosecutor and, more importantly, create reasonable doubt if we try the case. I’m not here to judge you or the conduct of which you are accused. I’m your lawyer.

The defense attorney can use the same answer when people ask, “How can you represent someone that you know is guilty?”

Am I Going to Jail?

Am I going to jail? This is the other delicate question the defense attorney will hear at the initial client interview. If the case involves a minor criminal charge and likely to result in some sort of diversion program, counsel should go ahead and answer “no” even if the guidelines suggest a 90-day sentence. In federal court this is less likely and throwing out unmitigated and non-negotiated guideline numbers can be as frightening as a prognosis from Dr. Nostradamus. This judgment call depends on defense counsel’s evaluation of the client’s anxiety and familiarity with the criminal justice system. Defense counsel should let the client know it is still far too early in the process to advise him of the likelihood of a lengthy term of incarceration. There’s nothing more shocking to a client than to add up all the charges and talk about a 200-year consecutive sentence. An overview of concurrent and consecutive sentencing may be overwhelming and put a premature end to the interview. If the circumstances involve a clear mandatory sentence, such as a gun enhancement, then counsel should let the client know about it during the initial interview.

How Much Do You Charge?

After completing the fundamentals of the client interview, counsel can talk to the client about a retainer and the estimated legal fees. The lawyer should not underestimate the cost of defending the case. There is nothing more problematic to the attorneyâ€‘client relationship than the lawyer demanding more money from the client in the middle of the case because the lawyer failed to properly provide an accurate budget.

Barking Dog.jpg There may be pressure to sign up the client, and the lawyer wants the work. However, it is a huge professional mistake for the lawyer to suggest a discounted rate when the lawyer knows the case will cost more. Many times a potential client will tell the lawyer that another lawyer quoted him a much lower price for legal representation. Counsel should be honest and respectfully disagree with the other lawyer’s estimate. Counsel should not demean or criticize the other lawyer, even if counsel does not have a favorable opinion of the other lawyer. Being small and petty during the interview only serves to dissuade a potential client from hiring the lawyer. The attorney should sell his understanding of the law, advocacy skills and creative problem-solving, but should refrain from saying had things about other lawyers and business competitors. The lawyer should always take the high road because his reputation with other practitioners, judges, and prosecutors is one of his most valuable assets. The lawyer’s integrity will ultimately attract clients and allow the lawyer to give them the best possible defense.

Little dogs bark, big dogs don’t have to.

My entire article was published in the 11/11 issue of The Champion published by the National Association of Criminal Defense Lawyers.

Hayes Hunt

Tagged with: Attornery-Client Relationship, Attorney-Client Interview, Criminal Law, Innocenct, Practice of Law
Posted in Prosecution & Defense

Attorney-Client Interview – Practice Points Part 2

Posted on December 16, 2011 by Hayes Hunt — No Comments ↓

Hand Cuffs.jpg Originally published in the Champion, November, 2011

The Client Has Been Accused of What Crime?

It is essential to know what happened both from the client’s perspective and from the government’s point of view. Before the attorney starts, she should explain the potential defenses to the charged c^•ime such as identification, alibi, self-defense, suppression of evidence, unintentional conduct, a mistake, and the credibility of government witnesses. The attorney wants the client filtering and aware of the defenses as he relates the facts to her.

Counsel must take her time and obtain all the facts from the client. She should exhaust every fact about every witness, the physical scene, computer data, phone calls, documents, a timeline of pertinent events, and any potential bias of the complainant or the cooperating witnesses. If the charges involve multiple counts; it is best to deal first with lead charges (i.e., conspiracy to do X). The government believes X is true because of a cooperating witness or the circumstances of the client’s arrest. The attorney should use this language throughout the interview: “the government thinks” and “the police are saying.” The government is unlikely to change that point of view, at least for now.

Who Is the Client?

Counsel needs to create an indepth profile of the client. The attorney will be funneling her client’s life history into defense theories, investigation, and if need be, mitigation for a negotiated plea agreement or sentencing. She must understand the client’s educational background, employment history, and relationship with his family. Furthermore, defense counsel must know the client’s medical (physical and psychological) history, and any drug or alcohol problems and treatment. Counsel should find out whether the client is involved with any charities, religious organizations, or the local community. In addition, counsel should take detailed notes about the client’s physical characteristics including height, weight, age, and race. She should note any identifying scars, tattoos, or unique physical attributes that may relate to an identification defense. Does the client have any prior arrests and convictions? If none, counsel should ask about character witnesses that know the client well and make sure these people have good community credentials. Good character witnesses include business leaders, the PTA president at the school the client’s children attend, and members of the clergy. If the defense attorney does not know her client, the ju^•y and judge will not know him.

Arrested Development

Santa Mugshot.jpg Was the client arrested at the time of the charged offense or was an arrest warrant issued? What items did police officers seize and how? Were other people present who may be witnesses to the arrest or search and seizure? The lawyer should explain the basics of suppression, probable cause and reasonable suspicion, and how they relate to the exclusionary rule. What did the client say at the time of arrest and did he give a statement after his arrest (Miranda issues)? If so, defense counsel needs every fact about the circumstances of any statement. Was the client handcuffed? How many police officers were present? What questions did they ask that may have elicited an incriminating response from the client?

If the case clearly depends on identification, the lawyer must find out whether the client knows the complainants, and if not, whether there was a lineup or a showup at the time of the arrest. Counsel should make sure he preserves any identification defense.

Counsel should tell the client that he may need him to wait in the parking lot at the next court date while counsel requests a lineup.

Guilty or Not Guilty?

At this point, counsel should have gained the client’s trust. Typically, counsel will suggest that the client plead “not guilty” as there have not been conversations with the government. If the attorney has been meeting with people in the Attorney General’s Office, they have decided to proceed against the client and a criminal information is off the table. A grand jury has already indicted the client, so the prosecutor will be hard pressed to veto the grand jury’s decision. Defense counsel should explain tohis client the importance of retaining an investigator and, if needed, a psychologist or addiction-treatment counselor. Counsel should let the client know he has a dual defense strategy: one related to the alleged criminal conduct and the other to mitigation.

My entire article was published in the 11/11 issue of The Champion published by the National Association of Criminal Defense Lawyers.

Hayes Hunt

Tagged with: Client Communication, Plea Agreement
Posted in Prosecution & Defense

ABA Blawg 100

Posted on December 5, 2011 by Hayes Hunt — No Comments ↓

From the Sidebar has been selected to the ABA Journal’s Blawg 100, the 5th annual list of the best in blogs about lawyers and the law. Thanks for all your support, comments and advice all of you have provided to the blawg. If you are inclined, please consider voting. Register to vote at http://www.abajournal.com/blawg100/. You can find From the Sidebar under the Trial Practice category.

Yours with gratitude,

Hayes

Hayes Hunt

Tagged with: ABA Journal Blawg 100, American Bar Association
Posted in Uncategorized