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Avvo Rating - 10.0 Paul Kish Top Attorney
Super Lawyers - Paul S. Kish
AV Preeminent - Peer Rated for Highest level of Professional Excellence
Avvo Rating - 10.0 Paul Kish Top Attorney
Super Lawyers - Paul S. Kish
AV Preeminent - Peer Rated for Highest level of Professional Excellence

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I have often enjoy re-telling the old joke about how there are three kinds of lies: 1) Lies, 2) Damn Lies, and 3) Statistics.  Many of my federal criminal cases here in Atlanta and elsewhere involve one or more of these three types of “incorrect” information.  Some government witnesses tell little lies, while others tell big whoppers that are flat-out lies designed to help the liar and hurt my client.  On some other day I will pontificate about how the system of rewarding “cooperating witnesses” is a perversion of our justice system that leads to some its greatest failures.  But today, I want to talk about how statistics and their analysis and manipulation can sometimes be the greatest lie of all.

Now remember, most lawyers are not “numbers people.”  That’s the reason we went to law school, because some teacher or school just flat-out insisted that we needed to learn calculus. For the most part, attorneys are not at their strongest when dealing with mathematic or scientific issues.  While most good trial lawyers are bright and can quickly pick up new concepts, this is not our main area of expertise.

So, we have a system where most of the main participants are not all that great with numbers or science, and then we have cases that are chock full of both types of information. Here is what usually happens.  A prosecutor hears about a new type of evidence, such as DNA analysis and comparisons to see if the person on trial had some connection with the victim or crime scene.  It’s only been 30 years since this evidence was first accepted into court, and in the early years virtually all prosecutors and defense lawyers simply deferred to whatever the “experts” claimed.  Then as time progressed, more and more lawyers got comfortable with the basic science behind DNA analysis, and began poking holes in the claims, leading to the far too many cases where DNA analysis has actually exonerated previously convicted Defendants.

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I posted recently on questions people should ask themselves and potential attorneys when anyone feels they need to hire a federal criminal defense lawyer.  The earlier post focused on questions dealing with the attorney’s qualifications, and whether he or she would be the right “fit” for the client and that case.  Today, we talk about what is often the bigger issue for many people; money.

OK, here’s the first point, and it is painful.  Lawyers are expensive.  Lawyers who specialize in federal criminal defense are very expensive.  And, lawyers who are among the best at handling federal criminal cases are sometimes extraordinarily expensive.   There are several reasons why really good criminal defense lawyers handling federal cases are so expensive.  I’ll talk about that in a minute.  However, just because the top federal criminal defenders usually charge a lot of money, that does not mean a good defense is too expensive for most people.

For starters, there is the nationwide system funded by the Criminal Justice Act, or “CJA”.  Under the CJA, there is a “public defender” in every federal judicial district.  Furthermore, qualified private lawyers handle overflow work and cases where the public defender might have a conflict of interest.  The vast majority of federal public defenders and CJA private counsel are capable lawyers, and a few are very good.  Therefore,  if someone is “indigent”, it is possible to have the court appoint a “free” lawyer, and these attorneys are often better than some attorney who says he or she will take a federal case for far less than the fees most attorneys are charging.  People should be wary and suspicious of an attorney who says she or he can handle a federal criminal case for less than $10,000 (most cases are far, far more expensive than this amount).  These matters are usually so complex that the lawyer who charges such a fee will have a very big incentive to not work hard and to try and convince the client to plead guilty without every assessing the merits of the case. Continue reading

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Well, it’s Monday, and the phone is ringing (thank goodness) with calls from people who over the weekend decided that they or one of their loved ones REALLY needs a good federal criminal defense lawyer.  I am always glad to talk with people about actual or potential federal criminal cases, whether the matter is here in Atlanta, up in North Carolina (where the first caller’s case is from), New Hampshire (this morning’s second call) or somewhere else in the country where I sometimes go to help my clients.  When I had a few moments later today, I decided to put down some thoughts about this process and questions that people should ask lawyers (and themselves) when trying to decide whether to hire a particular federal criminal defense lawyer.

For starters, the first is not always the best.  Just because the first lawyer sounds good (or actually returned your call), that does not mean this is the right attorney for your case.  Also, clients need to remember that lawyers are like many doctors, we sometimes specialize.  Potential clients need to remember that just because an attorney calls him or herself a “criminal defense attorney”, that does not mean that this lawyer is the best fit for your case.  As I’ve written and spoken about on numerous occasions, there are many excellent attorneys who work in the State Court systems but who rarely take federal criminal matters.  There are many reasons for this, but potential clients facing a federal case likely are better served with someone who does federal cases as the majority of his or her work. Continue reading

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Many times I am hired when a person or company is under investigation for supposedly committing a crime, both in and near Atlanta and throughout the State of Georgia and in other parts of the United States (and sometimes even in foreign nations).  Some of these investigations turn into criminal cases.  Other times, no charges are brought.  However, today I want to talk about a third type of result; when the criminal case turns into a civil settlement.

Many businesses operate in a highly regulated environment.  For example, companies that provide services that are paid by Medicaid/Medicare or an insurance company almost always have to comply with lots of rules and regulations that in the end come out of the United States Department of Health and Human Services (“HHS”).

For a few years I’ve been working with some extremely honorable folks who operate several businesses that provided mental health and other services to poor people.  Sometimes, they even give free housing, transportation and food to the poor.  The payments for mental health services were provided from federal money that went to the State of Georgia.  All this federal money comes with lots of federal regulations that must be complied with. Continue reading

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I posted recently about how as lawyers we feel good if we win a criminal case.  My client from this recent case recently posted his feelings on the same subject, and some attorneys might find it valuable to see how the matter looked like from his perspective.  Here is what he wrote.

I hope whoever is reading this finds my words with sincerity. I had been accused of a crime that I was 100% innocent of but the circumstances made me appear to be implicated in some way. My name and image were published in the newspaper and plastered on the internet. Myself and Paul were up against a task force who in court gave their expert testimony against me. They did an excellent job vilifying me in court. But Paul did a much better job conveying my innocence. His speech was delivered with a surgeon’s precision. He was passionate about my innocence. I couldn’t believe it when Paul cross examined one of the expert witnesses who was also the arresting officer. Paul got him to admit on the stand that their entire case against me was speculation and that based on their evidence and approach I could have easily been as innocent as I was guilty. Paul got the truth to come out of this officer’s mouth on the stand in front of the jury! There are so many good things I can say about Paul Kish. I am now able to move on with my life with a clean record because of this man. I couldn’t believe how hard Paul fought for me in court. Right before the Foreperson read the verdict I turned to Paul and let him know that no matter how the verdict came back I was truly grateful for the effort he put in. He was worth every penny. Thank you again Paul! (Not Guilty!)

(Before Trial)

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I won a criminal trial when the jury last evening returned the lovely two-word verdict of “not guilty” for my client in a case in a court just north of Atlanta.  As a criminal defense lawyer, hearing these two words is too rare and always comes after a lot of hard work and pressure.

Winning a criminal case is always an uphill battle, and puts a lot of stress on the attorney.  A federal judge who has presided over criminal trials for many years posted his own observations about these stresses: https://blog.simplejustice.us/2017/03/29/kopfs-top-ten-observations-about-criminal-defense-lawyers/.  This judge noted that, “When it comes to convincing a client to reject a plea offer and take the case to a jury, a criminal defense lawyer (regardless of gender) must possess balls of steel.”  However, today I want to briefly talk about the impact on clients who have the guts to take their cases to trial.

Yesterday’s case was a perfect example of the extraordinary stress that a client faces when he or she decides to take their case to trial.  My client had no prior criminal record, is 31, and an extremely hard-working man.  He has big plans for his future, and consistently denied that he committed the crime he was accused of doing. The prosecutor had a not-very-strong case, and continued to make “offers” to get the client to plead guilty.  In the final offer, the prosecutor agreed that if the client pled guilty he would get no jail time, a minimal fine, and that after a short period of probation the conviction would be “restricted” from his record. However, many people know that these “record restriction” rules still allow for the conviction to remain on a person’s record, but only law enforcement officials can see the case.

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In some of my federal criminal cases, my client decides to plead guilty in order to reduce his or her exposure to a harsher sentence.  This happens in cases all around the country, Atlanta to Anchorage, no surprise.  However, in the past 36 years I’ve come across some problems and pitfalls that can make a guilty plea actually worse than fighting the charge.

In the federal criminal justice system, we all know about the Sentencing Guidelines.  This is a point-based system that leads to a range of punishments.  Most issues add points to the calculation, but pleading guilty can lead to a 2 or 3-point reduction for “acceptance of responsibility.”  One pitfall is when the Defendant does or does something that leads the Judge to feel that the Defendant has not really accepted responsibility, even though the person plead guilty to the crime.  Such a client loses on both ends, they still get a longer sentence and lose their right to fight the case.  That is why it is so important to go over in detail everything that happens leading up to, during, and after the guilty plea proceeding.  The lawyer and the client need to be on the same page and script, so to speak.  While I never want to tell my clients exactly what to say, it is important that they know what will happen so I can advise them how to answer certain questions. Continue reading

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I’m currently working on a federal criminal case in a court near Atlanta, and am plowing through the manner by which various law enforcement agents seized evidence that the Assistant United States Attorney (also called the “AUSA”)  wants to use against my client.  This process has me thinking about the many ways that law enforcement can obtain evidence, and the questions of whether the lawyer representing the Defendant should, or should not, file a “Motion to Suppress.”  Lots of people know that our wonderful Constitution contains the Fourth Amendment, which says the government cannot search for or seize evidence unless they have “probable cause”, and usually a warrant issued by a judge.  When they do not have sufficient grounds for a search or seizure, sometimes the Court will “suppress” the evidence, meaning it cannot be used during the trial.

My clients and others sometimes do not realize that law enforcement officials are allowed to gather evidence in many other situations where they do not have a warrant, or any level of suspicion at all. For example, the law does not prevent a police officer from walking up to your front door, ringing the doorbell, and asking you some questions.  This is sometimes called a “police-citizen encounter”, and federal agents lovingly refer to this as a “knock and talk.”  Anyone foolish enough to talk to law enforcement in this situation needs to know full well that anything coming out of their mouth, as the old saying goes, “can and will be used against you in court.”  A Motion to Suppress will not help any Defendant in this context, if he or she voluntarily made statements (although there certainly are situations where the police at the front door make it seem as if the person is obligated to talk; that is a totally different matter).

Another way that federal law enforcement officials get evidence without a warrant is by using various administrative processes that result in an order that some person or company turn over information.  It usually works like this:  a company in an area regulated by some federal agency has an obligation to cooperate with that agency’s investigations.  The agency sends an order, directing the company to turn over a boatload of information.  If the company fails to do so, the agency can go to court to enforce the court order, and can make other bad things happen to the company.  Again, no search warrant, and no Motion to Suppress will help if the company or its officials are later charged with a crime.

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I’ve made my living the past three decades plus representing people charged in federal criminal cases, mostly here in Atlanta.  The news the past couple of days has been dominated by three other federal criminal matters, the case in Virginia against Paul Manafort (as I’ve mentioned previously, this man is in an unfortunate situation but has a great first name), the guilty plea yesterday by attorney Michael Cohen, and the sentencing hearing a few hours ago where the Judge imposed 63 months on the unfortunately named Reality Winner for releasing secret information to a news organization.

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.  Continue reading

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Although I am in Atlanta and tend to handle federal criminal cases here in Georgia and nearby states, I also work on cases throughout the country when asked to do so.  As a result, I also try to keep up with federal criminal matters arising in other “circuits.”  Yesterday a Federal Court of Appeals (the Sixth Circuit) that deals with cases out of Kentucky affirmed some health care fraud convictions for doctors and others who operated labs that tested patient urine samples.  The case is called United States v. Bertram.  18-5002-2018-08-20.  This decision is yet another lesson as to how complicated these cases can be, and how issues can be missed by even the best lawyers and judges.

The Defendants were some small-town doctors and business people who were in an area where the opioid scourge has caused so much pain and agony.  A couple of the doctors operated addiction clinics and needed labs to test patient urine samples for drug use and other information.  They formed their own test lab, but test samples began to back up when the equipment did not operate at first.  The samples were frozen for up to 10 months before being tested.  The lab then sent requests for payment to private insurance companies.  The government said this was health care fraud, because the lab operators failed to disclose that they had waited up to 10 months to test the frozen urine samples, and this constituted a “scheme to defraud.”  The jury rejected most of the prosecutors’ case, but each Defendant was found guilty of some charges related to bills submitted to Anthem Insurance.  The judge imposed what to my eye seemed to be rather modest sentences, ranging between 13-21 months.  Reading the case yields two observations.

First, the sentencing part of the case is exceedingly similar to my recent securities fraud matter where we had the two-day sentencing hearing, whittling down the Guideline range from close to 30 years to point where the judge imposed 10 years on my client.  Federal criminal sentencing proceedings for these white collar criminal matters often involve the same common issues: calculation of “loss,” whether to bump the Defendant’s score up for “sophisticated means”, did the Defendant abuse a “position of trust”, and what was his or her “role in the offense.”  Anyone facing such a case needs an attorney well-versed in these complex sentencing subjects.

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