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Super Lawyers - Paul S. Kish
AV Preeminent - Peer Rated for Highest level of Professional Excellence

Here in Atlanta and other federal cases that I handle throughout Georgia, Florida, Alabama and other states, lawyers often chuckle (and once in a while enjoy a full belly laugh) at some defenses I come up with once in a while.  Here are a couple.  Now, remember, these are reserved for certain fact patterns, and these defenses are not going to work in every case.  Still, it is worth remembering that these are “real” defenses, and work every once in a while.

One of my favorites is a defense that I affectionately call “the wrong courthouse.” Some cases are  bought in federal court, even though there is a very slim or tenuous connection to the federal government.  The Feds usually try to get past this thin connection by using the “Commerce Clause“, found at Article I, section8 clause 3 of the Constitution of the United States. Continue reading

I am reviewing the Discovery (meaning the evidence) in a somewhat old federal criminal case that has ties to both Atlanta and North Carolina.  My client is accused of a drug crime, and from the indictment and other materials it appears that the prosecutors contend that there is a mandatory minimum penalty of 5 years in custody, and up to a potential maximum of life in custody.  Obviously, this is a very serious matter.  While this case and the potential penalty are each very serious, the possible sentence caused me to reflect on how far the federal criminal system has come in the 37 years I have been involved.

I started in 1982, and way back then, there were no mandatory penalties, no Sentencing Guidelines, and anyone who got a custodial sentence for a federal crime generally was eligible for early release, or “parole.”  Things began to change in the middle of the 1980’s. Drug crimes started getting more violent.  Then, in 1984 Congress created those Sentencing Guidelines, a mandatory and overly mechanical system for imposing harsher and harsher penalties. At the same time, they did away with parole, and our clients entered a system where they had to serve the entire sentence, other than a potential small reduction for “good behavior.” Continue reading

With apologies to the late great Kenny Rogers (who had a house not far from mine in Atlanta) ,  part of the federal criminal defense lawyer’s job is to decide whether or not he should turn over “good” defense evidence to a prosecutor BEFORE an indictment is issued in the hopes that no charges will be brought.  On the other hand, if the prosecutor is going to bring charges anyway, sometimes the criminal defense attorney can get more bang for his or her buck by holding off on revealing the “good” stuff and using the element of surprise during the lead-up to trial.  As old Kenny sang “ya gotta know when to hold ’em, know when to fold ’em.”  Here are some of the considerations that go into this part of being a criminal defense attorney who specializes in federal criminal matters and white collar crimes and appeals.

Many federal prosecutors will tell a Defendant that the Government is on the path toward getting an indictment.  In this scenario, the prosecutor will send what we call a “Target Letter” to the prospective Defendant.  The letter basically says that charges are likely, gives a brief outline of the charges, and tells the person that he or she might want to consider getting a lawyer to talk it over BEFORE the charges are brought.  As a general rule, prosecutors will offer some slight benefit to a person who agrees to plead guilty shortly after getting one of these Target Letters.  Prosecutors also use these Target Letters to get potential Defendants to cooperate against more involved or culpable people, or higher-ups in an organization.

Like many federal criminal defense attorneys, it is very common for clients to come to me after they get one of these Target Letters.  Like many lawyers, I usually will reach out to the prosecutor who wrote the letter to get a somewhat more detailed sense of what the Government is looking at, the client’s potential exposure, the stage of the investigation, whether other people have been charged and/or sentenced, and any other pertinent details.  I then meet the client to get his or her side of the situation.  Here is where it starts to get tricky.

I have several federal criminal cases in Atlanta and other parts of Georgia involving allegations that my clients dealt in marijuana.  Some folks in other parts of the country also have contacted me recently about federal criminal prosecutions in states where the local laws permit personal use and state-sponsored sale of marijuana.  In virtually all of these cases, someone always asks: “But I thought Pot was legal? How can the federal government prosecute me (or my loved one) if the state where the federal court is in lets people use this drug?”

One of the less well-known parts of our wonderful Constitution is called the “supremacy clause.”  If you are interested, you can find it in Article VI, the second paragraph.  Here is what it says: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The supremacy clause makes a lot of sense for many aspects of life in a democracy.  For example, things would be a bit untidy if the law on how to build and maintain a highway changed at the state line separating Alabama from Georgia.  Keeping some level of uniformity means that our people can expect the same basic guidelines and laws as we move from place to place in this enormous and beautiful land.

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

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

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

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!

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

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