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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

OK, here’s my second post on the annual amendments to the Federal Sentencing Guidelines, rules that govern imposition of a criminal sentence in all federal courts from Alanta to Alaska, from Maine to Moultrie (way down in South GA, look it up if you’re not familiar with it).  There are two good defense-friendly amendments I will mention, but first, a little more history (poor readers, you know my inclinations).

Over the past 30 years, there have been a number of trends we see in these yearly Guideline amendments.  For the first 15-20 years, virtually all such amendments resulted in harsher sentences.  Then, when Congress and the public began finally listening to those of us hollering about how the United States had turned into the country that incarcerates the largest percentage of its population, the rules slowly began to soften.  It also helped when fiscal hawks joined the “defense” side of the argument, pointing to the millions of dollars wasted when locking up low-level offenders.  The past 10-15 years have included a number of amendments that actually reduce or make sentences less harsh than earlier versions of the Guidelines.  The 2018 amendments are more down the middle, a few that jack up sentences (for newer offenses like dealing fentanyl or designer drugs)  and others help to soften the blow for many of my clients.  Today, I want to discuss two defense-friendly changes effective 11-1-18.

First, there is a change concerning the “acceptance of responsibility” rules, found at USSG §3E1.1.  Remember that a defendant can earn up to 3 points “off” the scoring rules when he or she “accepts responsibility”, which generally means pleading guilty and doing so early enough so that the prosecutor did not have to actually do some work preparing for trial.  However, experienced readers know about Presentence Reports, defense objections, and the all-important federal sentencing hearing where arguments on each side are presented to the Judge, whose rulings on contested issues can have a huge impact on the sentencing “range” and therefore the ultimate sentence.  One of the biggest issues is often the scope of “relevant conduct”, meaning how much stuff done by other people will the Defendant in court be held accountable for?  Over the years, some prosecutors and truly mean judges took the position that a Defendant who fights against relevant conduct can lose the 3-point reduction because that Defendant has not shown he or she is truly accepting responsibility.

Here is a photo of one of the bookshelves of my Atlanta officer where I handle lots of federal criminal cases. IMG_0658  If you look closely you will see row after row of Federal Sentencing Guidelines Manuals, stretching from the current version back to the slim original 1987 Guidelines.  I just got done ordering the newest version.  Each year, like clockwork, the United States Sentencing Commission issues a new and amended version of the Guidelines.  Each year, this annual version comes into effect on November 1.  Just like the New Year celebrations make people take stock and consider their lives, the yearly issue of the Sentencing Guidelines caused me to reflect on this three-decade experiment in using “Guidelines” to impose a federal criminal sentence. I will write several posts about the Guidelines, their changes, and how all of this impacts lawyers and clients involved in a federal criminal case.

Let’s start by discussing the increased complexity of the Sentencing Guidelines.  My original 1987 version was a slim 557-paged tome, while the most recent version is a two-volume set that exceeds 2100 pages total.  One reason that the materials are more lengthy is that every year, the Sentencing Commission also publishes all the earlier amendments as part of the current year’s issue.

Many lawyers do not appreciate the importance of having all of the earlier amendments.   I like to keep all of my old books just so that I can trace back the lineage of the current Guideline and its predecessors.  Sometimes, researching the Guidelines is a bit of an archeological expedition, with the attorney peeling back layers of history in order to figure out the reasoning behind the current version of a particular rule.

Some good attorneys here in Atlanta recently won a federal criminal case, so being the nosy person that I am (and formerly their so-called “boss”) I had lunch with these very accomplished attorneys to find out how they happened to get the far too rare “two word verdict” (meaning “not guilty”).  I posted a few weeks back about a case I did this summer where the jury also found my client not guilty, so I wanted to compare what these other attorneys experienced with cases I have won.  Some common themes arise in cases where a person accused of a crime is acquitted, and I wanted to see if any of those themes were a part of the case my friends recently handled.

The case that my friends defended was one of the increasingly complicated federal white collar criminal matters that I handle on a regular basis.  As I’ve discussed other places, white collar matters involve not only complex business transactions, the law and the evidence is often exceedingly dense.  In many such cases, emails are often the most damaging evidence. An email (or text) is a less formal manner of communicating,  and people often are far less careful in these electronic messages than they otherwise would be if they were writing a formal letter or document.  Many times, we all respond to an email or text late at night before going to bed, and perhaps don’t think about how the message will appear to someone else who is not so tired.  Not only do electronic communications often provide an unfiltered view into how someone is approaching a transaction, the messages are located all over the place, and number in the hundreds of thousands in a complex business deal.  Wading through all this is a chore, but it has to be done.  My friends who told me about their recent victory did the hard work, plowing through the tens of thousands of messages, identifying those that could be damaging, and locating the materials to be used when cross-examining government witnesses.  Good results always are preceded by lots of hard work.

Another thing that my lawyer friends talked about was the effort to streamline and simplify the defense so that the jury could more easily understand the case and the reasons why there was reasonable doubt as to their client’s guilt or innocence.  They kept reminding themselves about the “themes” of the case, and the need to repeat and reiterate these themes with each and every witness if possible.  In the end, the goal is to make the defense themes easily understood and recalled, the themes must be based on the evidence, and the themes must be part of the case from beginning to the end.

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.

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

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

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

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)

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.

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