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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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Hello Sports Fans, Paul Kish here, just returned from U.S. District Court here in rainy Atlanta, Georgia where we had a pretrial evidentiary hearing in yet another federal criminal case.  I’ve done many hundreds, if not thousands, of these in my career, and I’d like to provide a few observations about these hearings that happen in some federal criminal cases.

First, we do not have these hearings in every case.  Instead, Judges will convene one of these hearings only when the Court needs some evidence in order to rule on a pretrial issue brought up by one side or the other.  Most of these hearings relate to pretrial motions filed by a Defendant, such as a Motion to Suppress.  However, other cases involve pretrial pleadings by the prosecutor who requests a ruling that certain evidence should either admitted or kept out of the trial in the case.  For example, one time we had a lengthy hearing where the Government asked the Judge to prohibit our expert witness from testifying at the upcoming trial.  The trial Judge ruled for the prosecution, yet in the end we basically won when the Court of Appeals saw the issue our way and reversed all convictions because of the improper exclusion or our expert witness. Continue reading

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Readers know that my work as a criminal defense lawyer in Atlanta mostly involves federal prosecutions in courts here in Georgia and throughout other parts of the nation, if my clients need me in those locations.  After 36 years of doing this work, I still believe that the hardest decision my clients need to make is the question of whether they should go to trial or if they should authorize me to try and negotiate a “deal” and then plead guilty.  I am currently working on several such decisions, and the process made me want to write further on the subject.

I have posted previously about the vanishing species known as the federal criminal trial.  Trials are down, way down, and there are many reasons.  One main reason is that penalties for the past three decades increased.  Furthermore, the rule-makers (i.e., the US Congress) gave more and more power to prosecutors and took more and more away from Judges.  The result was that many attorneys felt overwhelmed and that feeling caused those lawyers to stop fighting and to begin looking for ways to avoid lengthy penalties that their clients suffered.  In other words, some lawyers lost their fighting spirit. Don’t get me wrong, in many cases negotiating a deal is the best course of action, but the stiffening penalties led a few lawyers to simply lose the fire in the belly needed to take a case to trial. Continue reading

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I just got word that all charges were dismissed against my client in a federal criminal case I have been working on for several years.  It feels good for several reasons, some obvious, others are more subtle.

One of the main reasons the dismissal feels so good is that I am virtually certain that my client did not commit a crime in the first place.  She was previously married to and had children with one of the other people charged in the case.  Her ex-husband was connected to some properties where investigators located evidence of criminal activity.  There were only two ways that my client was involved in the overall case.  The first was that her ex-husband (or someone working with him) hid other evidence of criminal activity in her back yard that investigators located with a search warrant.  Second, investigators got a warrant for her bank records, and a search of her accounts showed that she had significant savings even though she worked a low-paying job.  My staff and I were able to go back and demonstrate that the accounts grew to these large balances because she saved like we are all supposed to do: a little bit at a time and never spending lots of money.  Even if the case had gone to trial, I feel confident we would have been able to convince the jury that the money was from her hard work and not from someone else’s criminal acts. Continue reading

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It’s a New Year in Atlanta, and I am doing my usual work on federal criminal cases, criminal appeals, post-conviction matters and whatever else that my clients need that can help with their various situations.  One of today’s tasks is to schedule a “proffer” session for one of my clients who has been charged with federal fraud crimes.  While working on the relatively mundane job of scheduling a proffer session, I started thinking about how many clients, and even some attorneys, really do not fully understand what a proffer is, how it can help, and more importantly, how it can be a bloody disaster if not handled correctly.

A “proffer” is when a lawyer takes his or her client over to meet with federal prosecutors and investigators for a question and answer session.  This session is never something that the client is obligated to do, it is totally his or her choice, after of course consulting with well-trained legal counsel.  The proffer is kind of like the test-drive when considering a certain car at an automobile dealership.  The driver is not obligated to buy the car, the seller has no duty to sell, both sides are trying to learn more in determining whether they want to reach some agreement down the road. Continue reading

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Many people have heard about “Varsity Blues”,  which is a federal criminal case handled in Boston that alleges lots of wealthy parents basically paid for advantages to get their children into college. When the case broke and virtually all commentators were assuming that the Defendants were guilty, I posted about how everybody needs to take a chill pill and let the criminal defense lawyers do their work.  Stories over the past two days seem to show that my warning was on the mark.  These developments show that the criminal defense attorneys have demonstrated that prosecutors may be violating the “Brady” decision.  Brady was a Supreme Court case that says prosecutors violate our revered Fifth Amendment if they refuse to turn over “exculpatory” evidence, meaning evidence tending to show that the accused person is not guilty of the crime.

The Brady case was from long ago, when I was a mere lad of 7 or so.  What happened was that Mr. Brady was charged with murder, along with another man named Boblit.  Brady acknowledged he was present but claimed he was not the one who killed the victim.  Brady’s lawyers asked for all of Boblit’s statements, but prosecutors held back one statement in which Boblit admitted he was the shooter.  The U.S. Supreme Court said that prosecutors violate the Constitution when, after a request from the defense, they hold back and do not turn over “exculpatory” information, meaning, they fail to tell defense lawyers about evidence that tends to show the accused person is either not guilty or guilty of a crime with lesser punishment. Continue reading

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Another gorgeous early winter day in beautiful Atlanta, Georgia, and I am preparing to assist a client who will be interviewed soon as part of the preparation of the Presentence Investigation Report.  For any of you somewhat unaware of this process (the six of you know who you are), here is a short primer explaining this crucial document that is part of a federal criminal case.  I also want to discuss how an accused person’s attorney needs to help the Defendant navigate through this process.

Whether the Defendant is found guilty after a jury trial, or decides after consulting with counsel that the best course is to plead guilty, the next major step in court will be the sentencing hearing.  The Federal Judge generally will time that sentencing hearing to happen 2-3 months down the road.  In the interim, the United States Probation Officer (the “USPO”) assigned to the matter needs to prepare the important Presentence Investigation Report (sometimes referred to as the “PSR”). Continue reading

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In my federal criminal defense practice here in Atlanta, I regularly file Pretrial Motions that challenge, in one way or another, the criminal indictment that alleges that my client did something illegal.  There are several such cases I am currently working on, and the process of thinking about, and then creating, challenges to the indictments made me reflect on some things that attorneys should do, along with a few items they should avoid.

Federal crimes are all created by “statute”, meaning laws passed by Congress.  There is no “common law” of federal crimes, which means that virtually all indictments are based on language in a particular statute.  So, the obvious beginning point is to compare the statute’s  language with the words found in the indictment.  Seems clear, right, but I am reminded of several cases over the years where none of the lawyers (on either side) noticed that there was a disconnect between the statutory language and the words in the indictment. Continue reading

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To the person who stumbled across this: I am a semi-regular blogger whose office is in Atlanta, and I discuss federal criminal cases, and the profession of being a lawyer who represents people and/or companies who are charged with crimes.  Yesterday I was meeting with a client who will be pleading guilty in the near future.  Here are some common aspects of that process.  This all happens AFTER me and my client have gone at length through our options (trial versus plea) and after we have done all of our negotiating with the prosecutor.

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. Continue reading

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I am currently working on a federal criminal appeal that will go to the lovely building a few blocks away that houses the United States Court of Appeals for the Eleventh Circuit here in downtown Atlanta. The appeal involves a “jury instruction”, which means the rules of law that the trial judge provides to jurors at the end of a trial to assist the jury in deciding whether the prosecutor has, or has not, proven that the Defendant is guilty as charged.  Working on this appeal caused me to think back about how I learned of the importance of jury instructions in a federal criminal case.

My interest in federal criminal cases began when I “clerked” for a couple of federal judges directly out of law school.  A federal judicial clerkship is a great job, you work for the Judge, and help him or her with research, writing opinions and anything else the the Judge wants you to do.  You also get to see lots of cases up close, and after a while you start to realize that you might actually be able to do as well, if not better, than some of the lawyers who have cases in front of your Judge.  Along the way, you learn a whole lot more “law” than they ever taught in Law School.

Judge K was the first one for whom I clerked.  He was great, let me sit in on anything and basically gave me a tutorial on what was happening in real time: “Paul, this lawyer is trying to protect the record, while this other lawyer is trying to get me to make a mistake for a possible appeal”, and the like.  Judge K also knew I was interested in possibly becoming a federal criminal defense lawyer, so he let me sit in on just about every trial of that sort.

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Attorneys who, like me, spend most of their time representing people accused of federal crimes know far too well what the academic researchers and writers call the “Trial Penalty.”  This is the well-documented aspect of the federal criminal justice system in which any person with the nerve to stand up to the federal government in a criminal case receives an inordinately huge punishment, or penalty, simply because that person decided to use the Sixth Amendment’s promise of a jury trial.  Here is a recent group of articles in a highly respected journal discussing various aspects of the “Trial Penalty”.

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. Continue reading