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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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This Friday in Atlanta there is the 26th annual seminar here in Atlanta for criminal defense lawyers.  I was asked to talk about civil asset forfeiture, and how that often accompanies or is parallel to a criminal case.  Here is the paper that is the subject of my presentation. Asset Forfeiture in Criminal Cases

As readers who waste some of their lives reading this blog know all too well, we have two court systems in this country where criminal cases arise: the federal system that is in all 50 states, and the separate systems used in each of those 50 states (plus the District of Columbia, Puerto Rico, Guam and a few other smaller locations).  Asset forfeitures arise in both federal criminal cases as well as the counterpart state criminal matters that I regularly handle in the Georgia court system. While there are many parallels, there also are some differences. Continue reading

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The morning Atlanta paper had a story about an investigation regarding alleged securities fraud in which a very good local attorney who I know was quoted.  That lawyer basically said that his client had not done anything wrong.  Good for him, sometimes an attorney needs to be proactive in defending his or her client, both from the investigation and from adverse publicity.

However, I have another matter where we convinced the government that they should not seek criminal charges against my clients, we worked out a civil settlement in which my clients agreed to pay money but did not agree they did anything wrong, and the prosecutors just issued a lengthy and over-the-top press release announcing the civil settlement.  My clients and I are trying to decide whether to make a public statement in light of this press release.

I have written previously on how the modern “press” often avoids its responsibility in such matters by simply repeating whatever press release is issued by law enforcement agencies and prosecutors offices.  Old-fashioned journalists used to try and get both sides of a story prior to publication, and a few of those reporters still exist.  However, in modern times that is becoming more and more rare.

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I am handling a criminal appeal that arose out of a high-profile murder prosecution here in beautiful Atlanta, Georgia.  The case was brought to me long after the trial and “direct appeal”, at a point when the client was down to his last “post-conviction” effort, which in some jurisdictions is called a “habeas corpus petition.”  I took over the case, convinced the Judge to let us re-work the issues, and then appealed the revised claims up to the United States Court of Appeals, whose main office is a few blocks from where I sit at my desk most days, also in Atlanta. The Court of Appeals just announced that they granted my request for “oral argument”, which they grant in very few cases nowadays.  The underlying murder was a very high-profile matter handled in the Fulton County court system many years ago.  After the direct appeals, the case worked itself in the federal court systems for a final effort to obtain post-conviction relief for my client.  I want to talk for a little bit about handling these high-profile matters on appeal or in the post-conviction arena many years after the crime took place.

I get calls and messages on a regular basis from family members who, years later, want me to challenge the conviction or sentence imposed on a person serving a lengthy prison sentence.  This is often very difficult, because the court systems have erected rules over the years that make it increasingly difficult to bring such challenges.  First, most courts now have time limits that severely limit when such challenges can be raised.  Furthermore, even if we get the challenge into court within these timelines, we then have the problem that previous lawyers on the case might not have raised or preserved the best issues.  If the better claims were not properly preserved by the earlier lawyers on the case, the prosecutors will respond to my efforts with all kinds of rules for kicking such issues out, rules called “waiver”, “default” and the always-difficult “harmless error” principle. Continue reading

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Our friendly federal court of appeals here in Atlanta issued a recent opinion about evidence in a case arising out of a federal prosecution that reminded me of the funny quote from Blazing Saddles (and earlier movies and stories) about how the bad guys “don’t need no stinking badges.”  For the evidence geeks out there, the opinion concerns preliminary rules for assessing and potentially accepting a piece of evidence when there is a strong challenge as to whether the evidence is “authentic” under Rule 901 of the Federal Rules of Evidence.  After 36 years of trying cases in federal court, I call this “passing the smell test” for challenged documents.  The opinion is a lesson on how lawyers need to keep abreast of these rules, which can often win, or lose, a case.

Raul Gutierrez committed fraud when constructing the airport on the island nation of Trinidad and Tobago, and somehow the decidedly unfriendly federal prosecutors were able to bring federal criminal charges against him in south Florida.  Raul pled guilty in 2006, and as I have discussed on earlier occasions, the Judge imposed the usual financial penalties, such as restitution, along with a hefty prison sentence.  Raul had some real estate in Florida, the judge “forfeited ” the property, and later the nation of Trinidad and Tobago wanted to get the land as a “victim” of the offense.  Time passed, the island got the judge to let them weigh in on whether they could go after the property, and then, a magical thing happened.  A company that was once associated with our friend Raul claimed that they held a “security interest” in the property, even though no one had ever mentioned this million dollar “interest” nor recorded it in the preceding decade.  In other words, years later, friends of Raul claimed they held a piece of paper that said they had a superior interest in the particular piece of real estate. Continue reading

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I am getting ready for some hearings in a federal criminal case I am working in in Gainesville, Georgia.  My preparation caused me to think about and want to put down some thoughts on the strategies that sometimes impact such matters, plus the tactics we use to implement the strategy in a particular case.  That’s a fancy way of saying I try to plan ahead for what I want to accomplish when I file a pretrial motion in a federal criminal case.

First, we often are able to convince a federal Judge that we are entitled to a “pretrial evidentiary hearing” concerning one or more of our Pretrial Motions.  Most defense lawyers relish such a hearing.  To begin with, it is always a benefit to get one or more of the government witnesses under oath before the trial.  At such a hearing, the defense attorney can sometimes try to “lock in” the government witness.  This means the lawyer will get the witness to thoroughly accept and adopt a certain version of the facts.  When the lawyer locks the witness into this specific story, it means that same witness will have a hard time changing or modifying his or her version when the trial comes along.  The attorney will have the transcript from the pretrial hearing.  It is always an enjoyable sight to see an accomplished criminal defense lawyer armed with a pretrial hearing transcript whipping up on a witness who decided to change his or her version.

In addition to locking the witness into his or her story, the pretrial hearing is also valuable because the attorney gets to kind of measure the witness, to see if the person is going to be a difficult at trial.  Cross examining a government person at trial when the lawyer has never previously encountered the witness can sometimes be frightening.  Having a pretrial hearing where the lawyer more or less gets a free whack at the witness can reduce the fright factor at the later trial.

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I’ve handled hundreds of gun cases prosecuted in the federal court system over the past 36 years, here in Atlanta and elsewhere.  Most federal gun prosecutions involve a claim that the Defendant had a firearm (or ammunition) and the accused was a “prohibited person” who cannot have the gun.  Most times it is the usual “FIPF”, meaning a felon-in-possession-of-a-firearm.  However, this same law law applies to firearms possessors who might be an illegal alien,  a fugitive from justice, committed to a mental institution, convicted of a misdemeanor domestic violence crime, or, who is an illegal user of a controlled substance.  Yes, that’s right, smoking a joint in a state where that is illegal might cause the dope-smoker to get prosecuted in federal court if the person’s other hand is wrapped around a firearm.

The main federal gun law, (18 U.S.C. §922(g)) says it is unlawful for anyone who falls into one of the prohibited categories to “…possess in or affecting commerce, any firearm or ammunition.”  Then, a separate sentencing provision (18 U.S.C. §924(a)(2)) says the accused person is liable to a prison sentence if he or she “knowingly” violates §922(g).  Over the years, the Courts ruled that there are three elements of this crime: 1) prohibited status, 2) possession, and 3) that the possession was in or affecting commerce.  Also, over the years, prosecutors convinced the courts that the word “knowingly” only applies to one of these elements, namely, the possession requirement.  As a result, there are lots of prior cases ruling that prosecutors don’t need to prove that the accused person “knew” he or she was a prior felon, illegal immigrant, fugitive, or a dope smoker.   Continue reading

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I just got a call from my client in a recent federal criminal case here in Atlanta.  My client was outside the gates of the federal prison, and gave me one last call before he went inside to begin serving his sentence, or as some inmates call it, “doing time.”  I always feel bad for my clients and their families when anyone is separated from society and their loved ones because they are incarcerated.  In the big picture, this man received a very favorable sentence, considering the facts of his situation on the day when I first met him.  Still, it’s a sad feeling to get such a call.  The call made me want to put down a few thoughts about what I have learned over the years concerning the experience for clients who are  “doing federal time.”

For starters, the federal prison system is operated by a huge organization called, oddly, the “Bureau of Prisons.”  Regular practitioners usually call it “BOP.”  The BOP operates throughout the entire country.  There are various “security levels” amongst the many federal prisons, and these fall into three basic categories, High, Medium and Low.   Continue reading

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In Atlanta I have been asked to give a speech to some lawyers who handle federal criminal cases.  The organizers of the seminar asked that I talk about criminal forfeitures.  A lot of lawyers are not well acquainted with this ancient form of punishment that is becoming more and more common in modern federal criminal law.  Here is the paper that is the basis for my speech.   Criminal Forfeiture

Forfeiture is a very old concept we inherited (like so many legal principles) from ancient English law.  The basic idea is that if property is used in or obtained from criminal conduct, the King could take the property.  They created a legal fiction by which title to the property actually turned over to the King at the point when the crime happened.

Fast forward to our incredibly bad War on Drugs beginning back in the 1970’s. Congress began re-tooling the ancient forfeiture concepts to let federal prosecutors go after dope dealers’ assets.  That is all fine and good, in theory.  However, many readers know that law enforcement and government officials began taking these rules to the extreme, taking property barely associated with a crime or taking money far greater than what was involved in any crime.  The United States Supreme Court recently heard arguments in a case out of Indiana exemplifying this issue.  Justin Timbs carried some drugs in his Range Rover and got caught.  The maximum fine for the crime was $5,000, but the state prosecutors seized and forfeited the $42,000 vehicle.  Oh yeah, Mr. Timbs proved that he bought the Range Rover with the money he got from his Dad’s life insurance policy.  Here is the usual excellent analysis from Scotusblog.com describing the case and the issues involved.   Continue reading

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I am taking a break from going through discovery materials in one of my current federal criminal cases that happens to be here in Atlanta.  I posted the other day about how the actual practice of federal criminal law is far different than the constitutional “rules” created in some cases from the United States Supreme Court.   Here’s a little more on the differences between theory and practice.

First, let’s talk about the timing of when we get the materials that the prosecution is supposed to turn over to defense counsel.  For example, here in the Northern District of Georgia, we have a Local Rule that says discovery “shall” be turned over at the arraignment.  Don’t take my word for it, read Local Criminal Rule 16.1, it flatly says the prosecutors are supposed to make all this stuff available to the defense on Day One of the case.  This is a Rule that makes a lot of sense.  Prosecutors get to decide when they bring a case, and since they are presumed to be ready on Day One, it makes a lot of sense to require that they produce everything to the defense on that date.  Ah, but the reality is far different.  In my current case, they took five weeks to produce materials.  In another case it took 3.5 months to get me the evidence that I knew they had all along.  They rarely give any excuses, they just give it to me late, and ignore my repeated complaints.

Second, we should also talk a bit about the type of materials that are turned over.  I sound like a very old lawyer when I remind people about how discovery in most federal criminal cases consisted of a small folder with 100-200 pages of material when I began practicing law.  Everything is far different in the digital age.  Most of the time, we now need to provide at least a hard drive to hold all the materials that a prosecutor turns over as the discovery in a federal criminal case.  You would think that larger volume of material would help the defense, more is better, right?  Ah, but as I have mentioned before, the government likes to hide the meaningful stuff among the forest of irrelevant data.  More information actually results in more work for the already harried criminal defense lawyer handling a federal case.

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I am currently plowing through the “discovery” in a federal criminal case brought against my client here in Georgia.  Discovery is the word we use to describe the evidence or exhibits that prosecutors are obligated to hand over to the defense lawyer at the beginning of a criminal case.  Going through all these materials in my current federal case reminds me of what I’ve learned over the years, and how the discovery “rules” are often far different than what really happens in criminal cases.

One of the biggest “rules” is based on a Supreme Court decision from 1963, the famous case of Brady v. Maryland,  373 U.S. 83(1963).  This rule applies to both federal criminal cases and those in the state court systems. The prosecutors conveniently “forgot” to hand over to defense counsel a statement made by Brady’s  co-defendant that Brady did not kill the victim, the other guy did it.  The Supreme Court said that suppression by the prosecution of evidence favorable to an accused who has asked for it violates due process if the evidence is “material” to guilt or to punishment, and it does not matter whether the prosecutor acted in good faith or bad faith.  Seems kind of simple, right, if the AUSA or DA has something which shows the the Defendant did not do the crime or should not be punished so severely, the “due process clause” from our wonderful Fifth Amendment  demands that the prosecutor give it up.

Now, here’s the reality, and I’ve always thought it is similar to the old expression about letting the fox guard the henhouse.  Lawyers, by our very natures, are competitive people.  We want to win.  Human nature tells us that if a prosecutor has evidence that undercuts his or her case, that DA or AUSA is less likely to want to turn it over than a more independent person.  But, here’s the crazy part of the “rule” as it has been modified over the years.  The DA or AUSA is the person who decides to turn it over (see what I mean about the fox guarding, etc).  Defense counsel might never even know about the exculpatory stuff if the prosecutor (and his or her agents) successfully bury the materials in files that are never turned over.  Even “good” prosecutors can fail to appreciate how some evidence or information is exculpatory, because they are looking at everything through a different lens than the criminal defense attorney.

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