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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

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Readers know that from my law office here in Atlanta I work on and travel around the country to places where I represent individuals and companies accused of federal crimes.  I also pontificate on occasion about the importance of keeping current in order to do this kind of work.  A case issued three days ago by the Supreme Court reminded me of this need for lawyers to keep up with recent developments in the law when defending their clients.

The case from the Supreme Court was United States v. Davis  which was the latest in a series of decisions in which the highest court in the land tried to figure out what Congress meant when the legislature enacted a series of tough-on-crime laws back in the 1990’s   These laws either impose more severe punishments for people with prior serious crimes, or on people who use guns in current serious crimes.  These laws all have a common feature; an attempt to provide a very broad definition of what is called either a “crime of violence” or “violent crime.” The problem in all of these laws is that in trying to create this broad definition, Congress failed to really say anything specific in what are called the “residual clauses” from these statutes. Continue reading

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Another day here in steamy Atlanta, and another federal criminal case I am starting to work on after being retained by my client. This particular case is in federal court in Texas, but I want to provide some observations that apply no matter where the federal criminal case might be pending.

Readers will recall that the “discovery” materials are those items that the prosecutor is obligated hand over to the defense attorney.  There are various sources of this obligation, found in some statutes, in court rules, and also within our wonderful Constitution’s promise of “due process.”  However, today I want to talk about practical aspects of looking through the “discovery” materials. Continue reading

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Another day here in Atlanta, and another high-profile federal criminal case in the newspaper.  Although most of my work is doing federal criminal defense here in Atlanta, in Rome, Georgia (where the case in today’s paper is being handled) throughout Georgia and the rest of the country, I want to be clear: I am NOT involved in the case described in the attached article.  However, seeing the case got me thinking about advice for people who need to hire the very best federal criminal defense lawyer for themself, a family member or for a loved one.  Here are six thoughts and tips.

First (and last), experience is the key.  I’ve written and spoken to groups in the past about this, but it cannot be over-emphasized: federal criminal defense is a speciality.  Many truly excellent criminal defense lawyers are not skilled or schooled in the intricacies of handling a criminal case in federal court.   These otherwise very good attorneys are at a disadvantage when their client gets indicted by “the Feds.”  So, tip #1 is that clients and their families should make sure that the lawyer they are considering has a lot of experience in handling federal cases. Continue reading

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Readers (the 4 of you know who you are) are aware that I am a criminal defense lawyer in Atlanta who’s specializes in federal cases and criminal appeals.  My cases in federal court are often in Georgia, but also take me to other parts of the country.  Today, I am meeting with a client in Atlanta to go over the Presentence Investigation Report (or “PSR”) for her case in federal court in Texas.  So, let’s talk about the PSR.

A PSR is the document that is sort of the beginning and the end of a federal criminal sentencing process.  If a Defendant is found guilty, by pleading or through a jury verdict, the sentencing hearing does not happen right away.  Instead, federal sentencing hearings happen 2-3 months after the plea or verdict.  During this intervening period, a United States Probation Officer (often called the “PO”) has to prepare the PSR, which is a lengthy document designed to tell the Judge more about the Defendant as a person and how the federal sentencing guidelines might apply to that person and his or her crime.  See more on the sentencing process here.

The start of the PSR is when the PO wants to interview the Defendant.  Here is often Mistake #1 made by inexperienced or substandard lawyers.  To being with, it is close to malpractice for the lawyer to NOT attend this session with the PO, although I have seen lots of lawyers allow their clients to do so, often with disastrous results for the client down the road.  The PO is basically an arm of the court and works for the Judge, so this is mostly the first time for the accused person to make an impression, good or bad.  Also, there are pesky rules and court cases holding that a false or even misleading statement to the PO can qualify as “obstruction of justice”, so the lawyer damn well should be present to make sure that his or her client does not lie or otherwise screw up this first impression on the Judge’s PO!

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I left my Atlanta criminal defense law office this morning and drove to the federal building where I met my client for what is called a “proffer” session.  Basically, this is the first step in the process by which my client will agree to cooperate with investigators and prosecutors, with the hope that his assistance will lead to no charges or charges with a potentially reduced sentence.  A proffer is when the client goes to the prosecutor’s office and answers questions from the prosecutor and investigating agents.  My client and I already made this decision for him to cooperate after a lot of discussion.  However, while today was just the first step in going down the cooperation road, it made me think more about the decisions the attorney and the client need to make when deciding whether to fight the charges or give in and make the best of a bad situation.

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. Continue reading

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As part of my work being a criminal defense lawyer in Atlanta and elsewhere, I recently gave a speech to some attorneys about civil asset forfeiture, which is the legal proceeding through which the police seize and then “forfeit” property.  The seizure is often part of or accompanies and is parallel to a criminal investigation.  Some recent matters made me think more about this whole process, and how myself and other criminal defense attorneys need to do a better job in protecting not only our client’s freedom, but their property as well.

The first matter is a recent article that discusses the Supreme Court case from a month or so ago in which all nine justices agreed that the Constitutional protections against “excessive fines” means that there needs to be some proportion between the crime and the property seized by the police even if the case is in the state court system.  That was the now-famous Timbs case in which the police took a $40,000 Range Rover that Mr. Timbs had bought with the proceeds from his parent’s estate.  The State of Indiana decided to seize the vehicle through the forfeiture process simply because Mr. Timbs foolishly had a relatively small amount of drugs in his possession when he was stopped.  The article points out how the case merely means that the constitutional protection against an excessive seizure applies to all the States.  The Timbs decision did not says what is, or what is not, excessive.  The article points out that question that will be left to future rulings.  The author quotes lawyers on both sides, prosecutors and defense counsel.  A prosecutor who was quoted claimed that she gave up on seizing some property because the value of the seized item was so small that it did not justify the amount of work she was going to have to put into the forfeiture process.  As a result, she supposedly let the defense attorney get the property back for his client.   Apparently, fairness, justice and equity do not matter all that much to this prosecutor, for she is simply worried about how many hours she works. Continue reading

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I am a criminal defense lawyer who practices mostly in Atlanta, but I try to keep up with other cases from around the country if they involve the federal court system where I handle the bulk of my practice.  I recently came across a case from south Florida, a case that reminded me that criminal defense lawyers need to fully understand and be able to explain to their clients that there really is no difference between “regular” evidence and “circumstantial evidence.”  The case comes out of the United States Court of Appeals for the Eleventh Circuit, where I have done hundreds of appeals in my career and where I need to go for yet another oral argument in a few weeks.

The case from Florida involved a man named Spencer Rozier.  Basically, surveillance videos and rental documents demonstrated that Mr. Rozier had a rather small unit in a private storage facility. He was the only renter, and the lease did not give anyone else access to the unit.  He was observed visiting, and was seen carrying cases of beer, soda cans and water jugs (I’ve lived in Florida, and can attest to the need for constant hydration-my friends used to comment “Paul doesn’t drink a lot, he just drinks all the time”).  The manager also saw others visit the facility along with Mr. Rozier, and these folks likewise carried boxes of beverages. The police raided the facility, discovered drugs inside that both smelled (marijuana) and which appeared to be obvious (transparent container holding cocaine, marijuana “protruding out of a bucket”, digital scales and baggies).  Mr. Rozier also had similar baggies with him when stopped by the police a month later. Continue reading

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As a criminal defense lawyer who handles matters in Atlanta and elsewhere, from time to time I represent individuals and companies who are investigated, or sometimes even prosecuted, for the very esoteric crime of “securities fraud.”  Reduced to the basics, the securities laws and regulations are well-intentioned rules designed to protect those fortunate to have extra money to put into the stock market or other investments.  “Securities fraud” is when some person involved in the securities field engages in conduct prohibited by that the Securities and Exchange Commission (the “SEC”)  or Congress.  So, the key to defending against an allegation of securities fraud is to deeply dive into the words that describe what conduct is, or is not, illegal in the securities field.  Yesterday, our friends in the United States Supreme Court issued the decision in Lorenzo v. SEC.  The case turned in part on the meaning of the law that makes it a crime for a person to “…make any untrue statement of a material fact” in connection with a securities sale or purchase.  So, what does it mean to “make” a statement?  That is one of the questions the High Court answered yesterday.

Francis Lorenzo was the head of investment banking at an SEC-registered firm.  He regularly sent out emails to potential investors, suggesting various stocks or other investments.  Now, here’s the key.  The information that Mr. Lorenzo put into the emails to possible clients came from Lorenzo’s boss.  In one set of emails, Mr. L. told investors that a company had over $10 million in assets, and therefore was a good place to invest.  However, Mr. L. knew for a fact that his boss was telling a plain old lie when saying that this company had $10 million.  Lorenzo knew that the company had recently disclosed that its total assets were more in the $400,000 range.  That is a big difference, meaning that if the statement was “untrue” it was also “material.”  The question from yesterday’s case was whether Mr. Lorenzo was the person to “make” the statement when he merely passed along or republished a false claim from his boss. Continue reading

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I am a criminal defense attorney in Atlanta, and readers know I also handle state cases throughout Georgia and in federal criminal cases all over the country.  One of today’s tasks is to work on Jury Instructions for an upcoming case in another part of Georgia.  My client, a businesswoman, is accused of some serious crimes that arose out of an event that ended very badly.  She says she did not engage in the crimes she is accused of, and because the District Attorney is not being reasonable, we pretty much have no other choice than to go to trial and put her case in front of a jury.

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.

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The Internet is agog over the allegations in an indictment issued in Boston that parents and others were part of a far-flung ring to game the college admissions system so that wealthy families could get their kids into elite universities. From my office down here in gorgeous Atlanta (where Spring is just beginning) I urge everybody to calm down, take a deep breath, and let the system work before we start stringing the parents up by their thumbs.

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.

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