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

I am in the final prep stages for an “oral argument” tomorrow morning in the esteemed (or as some wags call it, the “steamed”) United States Court of Appeals for the Eleventh Circuit, the home of which is a few blocks from my office here in lovely Atlanta, GA.  I think I have done over 70 such oral arguments in various federal courts of appeals around the country, but this will be the first “virtual” session, with the Judges and lawyers all participating via the Zoom app.  While the technology will have to replace the in-person proceeding, I wanted to briefly discuss five recurring features of an oral argument.

First, many people are not aware that it is only a rare federal appeal that is selected for oral argument.  The federal appellate courts are overwhelmed, and generally only select cases to be orally argued if the issues are unique, there was a lengthy trial, or the matter has some other unusual feature.  Once a case is selected for oral argument, it is placed on a calendar with other cases that will also benefit from oral argument.  Each day there are around 4 or 5 cases set for argument.  Then, a “Panel” of 3 judges is assigned who will hear the arguments and render decisions.  The clerk sets the dates and order of arguments and away we go!

Second, attorneys need to fully recognize that their time is very limited in an oral argument.  As a general rule, each side has only 15 minutes for their argument.  I am almost always the Appellant (because, after all, that is what happens in criminal cases, we lose and then appeal by claiming something went wrong in the lower court).  As the Appellant, we get to open and then have a brief rebuttal.  That means I generally have 10 or 11 minutes for my opening argument, and 4 or 5 for rebuttal.  Experienced oral advocates learn to think, and speak, quickly.

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I finished a federal criminal case in Atlanta recently.  My clients were very happy with the outcome.  Helping people is one of the reasons I still get excited about my work, even in my 36th year of handling such matters.  I mention this recent case because it has features we often see in such matters, and teaches lessons for both prospective clients and federal criminal defense attorneys, whether in Georgia or the rest of the country.

The clients are a husband and wife who have a small child together.  They are immigrants to the US, but are now citizens.  English is not their native language, as shown in the very nice statement the husband was willing to publish about their experience with me:  “I am grateful that we were able to retain Mr. Kish to represent my wife through an online research. We were panic before we met Mr. Kish. As a professional, intelligent lawyer, Mr. Paul Kish also provides outstanding customer service. Mr. Kish treats his client with respect and care. A HUGE Thank You here, Mr. Kish saved our family and got our life back on the right track.”

The wife was arrested in a blaze of publicity.  Turns out that the government made several incorrect assumptions when arresting this relatively guileless woman.  Over time, we were able to convince them they were wrong on several major matters.  We got all felony charges dropped, and agreed to a plea to a misdemeanor crime that does not require proof that the wife acted with criminal intent. Oh yes, we also agreed she would have to pay a whopping $632 fine. What started out as a big deal for the prosecution ended with a whimper when the Judge imposed a total of 1-year probation for the misdemeanor violation.

Even though the pandemic has slowed the federal courts here in Atlanta and throughout Georgia and the rest of the country, federal criminal investigations continue apace.  Those of you bored enough at home to spend time on this blog recognize that as a criminal defense lawyer specializing in federal criminal cases, I post on various aspects of this kind of work, the people involved, and various tips and tricks I’ve encountered over my 37 years doing this kind of work.  Today’s topic: the “reverse proffer.”

First let’s discuss the “proffer.”  I tell clients that the proffer is kind of like when you go car shopping and take one of the vehicles out for a test drive.  The dealership is not obligated to sell, you are not obligated to purchase, each side kind of wants to see how the situation might look if it all works out.  In a proffer, the person under investigation goes in (with his or her attorney, PLEASE!).  The prosecutor and agents ask questions, but the person’s answers are basically off-limits if the person is later prosecuted, with several major exceptions that we have discussed on other occasions. The prosecutor and agents want to hear the person’s answers, to see if they want to work out some kind of “deal” in return for the person’s information or possible testimony.

A “reverse proffer” is when the prosecutor feels that he or she might be able to convince the person under investigation that the Government has a very strong case. The prosecutor brings the individual under investigation and their counsel to the office (or everybody gets on a video call) and the prosecutor and agents lay out what they feel are the strongest parts of the Government’s potential criminal case. Such a prosecutor does this in the hopes that the person under investigation will realize that the game is over, and the person will tell his or her lawyer to negotiate plea agreement, thus saving the prosecutor the work of actually making a case.

Protests fill the streets around my office in Atlanta where I am a practicing criminal defense attorney who handles mostly federal cases.  While protestors are raising a much larger issue, I have my own protest: the loss of objective journalism in federal criminal cases when “reporters” merely parrot back whatever “press release” is issued by some prosecutor’s media person.

We all know the drill. A federal criminal case is announced after a person is arrested or charges are issued by a grand jury or a criminal complaint is filed.  Then, the multi-page press release is issued.  The public gets this “news” when a media outlet or a reporter for a more standard publication writes a story about the new case.  However, here is where things have changed so drastically over the years.

When I began three and a half decades ago, reporters ALWAYS called the defense attorney for a comment or reaction to the initial story.  This was ingrained into all journalists, the need to strive for “objectivity”, and the realization that there are always two sides to every story.  Sometimes it made sense to comment, many times the better course was to clam up and let the case work itself through the court system.  I remember one case where an egotistic young Public Defender (OK, it was me) told the assembled group of reporters, “We’ll do our talking in court, unlike the prosecutors.”  We got our butts kicked anyway.

Another Monday, and another week ahead of working on federal criminal cases here in Atlanta and the remainder of the State of Georgia (and other parts of our Nation from time to time).  I have to take a few minutes to write about the unanimous decision from the United States Supreme Court last week in the much-watched case of Bridget Kelly and her co-defendant, William Baroni.  This is the somewhat famous “Bridgegate” prosecution, and in the end the highest court in the land once again told federal prosecutors they are trying to stretch the federal fraud laws far too wide.

Way back in 2013, folks who worked for and with Governor Chris Christie of New Jersey purposefully messed with the traffic pattern on the George Washington Bridge in order to punish the mayor of a nearby town who would not  support Christie’s reelection bid. This led to four days of gridlock on the streets surrounding the bridge, after which the original pattern was restored. Bridget Kelly was the Governor’s deputy chief of staff, and along with William Baroni, came up with a bogus traffic pattern study as the so-called rationale behind the lane close-downs.  The two officials were later charged with federal crimes for supposedly hatching and then executing the plan to mess with the traffic pattern as part of political “payback”. Continue reading

Yet another gorgeous Spring morning in Atlanta where I am handling federal criminal defense matters from my home “office”.  I am working on various situations related to alleged fraud concerning the Coronavirus pandemic. This got me to thinking of lessons I learned (and some re-learned) when it comes to dealing with the “feds.”  Some of these current matters on which I am working are merely “investigations“, while a few others are actual ongoing federal criminal cases.  Some of the lessons I’ll discuss below are common to each type of situation.

First, it helps when the federal criminal defense lawyer has a good reputation.  There are many federal prosecutors around the country, and they simply cannot know all attorneys who handle federal criminal cases.  However, the group of lawyers who regularly handle such cases, whether prosecutors or defense lawyers, is relatively small.  Lots of great criminal defense practitioners never venture out of the state court systems, which means that the “federal bar” is a much smaller group.  Because the attorneys on each side is a relatively small number, it is very easy to find out information about a prospective opposing lawyer, even if the attorney might not know the person from earlier cases.  A good reputation is valuable, and a bad one very hard to shake. Having that good reputation does not get a better “deal”, but it does assure the federal prosecutors that the defense lawyer at least knows what he or she is doing.  And, this makes the early steps easier, for a known quantity is easier to trust. Continue reading

It has been the usual gorgeous Spring weather here in Atlanta, where I now do most of my work from home while representing clients facing federal criminal prosecutions and investigations.  Although I rarely venture into the office now, my firm has been able to keep up with all of our cases and maintain the work of helping our clients who face cases in federal courts throughout the country.  I have also learned (and remembered) a few lessons while in this new situation.

One lesson came from a case where I  represented a client who pled guilty to a federal economic crime.  We had one of the last “in-person” sentencing hearings in federal court just before all the courts closed down.   We convinced the Judge to impose a sentence well below what the prosecutor asked for, and well beneath the range suggested by my sometime nemesis, the Federal Sentencing Guidelines. The case reminded me that a better-than-expected result in a federal case where the client pleads guilty depends on many factors, but the lawyer needs to focus on two areas to achieve this.  First, the attorney needs to do whatever he or she can to maneuver the dreaded Guidelines into the best position possible under the circumstances.  Second, the lawyer then needs to get especially creative when trying to convince the Judge to impose a sentence below those same Guidelines.  In this particular case I had to juggle a series of areas to come up with a combination of reasons why the Judge should do what I was asking of her.  So, that recent lesson reminded me:  the lawyer’s work is far from over when the client decides to plead guilty, for that is often the point when the attorney can make the greatest impact and salvage the best result under the circumstances.

Another lesson I learned is that a “virtual meeting” is merely a substitute for an in-person consultation.  I have a new matter where my client and I have had many calls, but have not met fact-to-face because of the shutdown.  After many discussions, I came to realize that I had misunderstood a crucial detail.  It likely would have been cleared up much earlier if we would have been able to meet in person.  I am glad we figured out that particular miscommunication, but the lesson is obvious: it will be much easier to do my job properly after I can again meet clients in person.

I recently did a post about three “quirky” federal crimes I sometimes can use when trying to negotiate a “deal” for my clients facing a criminal case in federal court, often in Atlanta but many times in other parts of the country.  While these three are real crimes and sometimes are used to resolve a case, there are other federal crimes that are, to be blunt, stupid.

Some of these laws are found in the US Code.  Others are based on regulations issued by various federal department.  When combined with prosecutors who are rarely restrained by the courts, these laws may sound funny but actually represent potential dangers to all of us. Continue reading

It’s a rainy night in Georgia” crooned Brook Benton in the 1970 R&B classic, which is fitting on this rainy Monday during this rainiest time of the year here in soggy Atlanta, Georgia.  Although it’s very wet and ugly outside, here in my office I am pondering possibilities for resolving a certain federal criminal case in which my client wants me to negotiate the best “deal” he can get. Looking for a deal sometimes means we need to get creative, and this leads to my never-ending quest for quirky and oddball federal crimes that sometimes come in handy.  These strange federal crimes can be useful if they have a lower penalty than the one suggested by the prosecutor in the first place.  I will do another post some other time soon to lay out some of the really stupid federal crimes that are on the books.

However, considering my current matter, I am facing the fact that some federal crimes have mandatory penalty structures.  These make it especially hard to do my job of getting the lowest possible sentence for my client.  For example, even if I convince the Judge that my client is entitled to mercy, the Judge’s hands are tied and he or she cannot impose anything less than the mandatory minimum punishment.  As a result, I try to convince prosecutors to let my client plead guilty to a different, but related, crime which carries no mandatory minimum and a relatively low maximum punishment. Continue reading

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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