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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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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.

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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

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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

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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.

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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

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“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

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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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Readers know that my work as a criminal defense lawyer in Atlanta mostly involves federal prosecutions in courts here in Georgia and throughout other parts of the nation, if my clients need me in those locations.  After 36 years of doing this work, I still believe that the hardest decision my clients need to make is the question of whether they should go to trial or if they should authorize me to try and negotiate a “deal” and then plead guilty.  I am currently working on several such decisions, and the process made me want to write further on the subject.

I have posted previously about the vanishing species known as the federal criminal trial.  Trials are down, way down, and there are many reasons.  One main reason is that penalties for the past three decades increased.  Furthermore, the rule-makers (i.e., the US Congress) gave more and more power to prosecutors and took more and more away from Judges.  The result was that many attorneys felt overwhelmed and that feeling caused those lawyers to stop fighting and to begin looking for ways to avoid lengthy penalties that their clients suffered.  In other words, some lawyers lost their fighting spirit. Don’t get me wrong, in many cases negotiating a deal is the best course of action, but the stiffening penalties led a few lawyers to simply lose the fire in the belly needed to take a case to trial. Continue reading

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I just got word that all charges were dismissed against my client in a federal criminal case I have been working on for several years.  It feels good for several reasons, some obvious, others are more subtle.

One of the main reasons the dismissal feels so good is that I am virtually certain that my client did not commit a crime in the first place.  She was previously married to and had children with one of the other people charged in the case.  Her ex-husband was connected to some properties where investigators located evidence of criminal activity.  There were only two ways that my client was involved in the overall case.  The first was that her ex-husband (or someone working with him) hid other evidence of criminal activity in her back yard that investigators located with a search warrant.  Second, investigators got a warrant for her bank records, and a search of her accounts showed that she had significant savings even though she worked a low-paying job.  My staff and I were able to go back and demonstrate that the accounts grew to these large balances because she saved like we are all supposed to do: a little bit at a time and never spending lots of money.  Even if the case had gone to trial, I feel confident we would have been able to convince the jury that the money was from her hard work and not from someone else’s criminal acts. Continue reading

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It’s a New Year in Atlanta, and I am doing my usual work on federal criminal cases, criminal appeals, post-conviction matters and whatever else that my clients need that can help with their various situations.  One of today’s tasks is to schedule a “proffer” session for one of my clients who has been charged with federal fraud crimes.  While working on the relatively mundane job of scheduling a proffer session, I started thinking about how many clients, and even some attorneys, really do not fully understand what a proffer is, how it can help, and more importantly, how it can be a bloody disaster if not handled correctly.

A “proffer” is when a lawyer takes his or her client over to meet with federal prosecutors and investigators for a question and answer session.  This session is never something that the client is obligated to do, it is totally his or her choice, after of course consulting with well-trained legal counsel.  The proffer is kind of like the test-drive when considering a certain car at an automobile dealership.  The driver is not obligated to buy the car, the seller has no duty to sell, both sides are trying to learn more in determining whether they want to reach some agreement down the road. Continue reading

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