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Super Lawyers - Paul S. Kish
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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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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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I am about to go to federal court this afternoon here in Atlanta for a criminal case involving sex over the internet (sometimes referred to by the over-encompassing term “child pornography”).  Some lawyers shy away from these cases. I do not.  These cases are often disturbing and emotionally draining, but I always welcome the opportunity to help a person and his family through one of these exceedingly difficult matters.  However, over the years I’ve discovered a number of “secrets” in this type of federal criminal case.

One secret is that a vast number of people who commit sex crimes over the internet lead basically “normal” lives.  Many of my clients are happily married men with grown children.  Their families all report that the client was an exemplary father, never did anything remotely improper with the kids, their friends or with their spouse.  But, these men all seem to have some sort of mid-life crisis where their existence goes off the rails.

A second “secret” in these troubling cases is that many of my clients seems almost compelled to commit their crimes. We’ve all seen the news stories about the guy who comes to a sting operation and says to the undercover camera, “I sure hope you aren’t a cop.”  The clients often recognize in advance that they are engaging in illegal conduct, that they likely will get caught, yet they still keep going toward the “bait.” It is almost as if they are living a double life, with the “normal” rational part of their brain telling them that this is a crime and they could get caught, but the other part is driven forward to engage in the illegal conduct by some very deep part of their consciousness.  After they are arrested, many clients have commented that it seems as if it was another person doing the crime. Continue reading

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Lots of people facing federal criminal charges are surprised by some rules that are based on decisions from the United States Supreme Court.  One of the dumbest rules that confounds most regular folks is what lawyers call the “dual sovereignty exception” to the Constitutional protection against double jeopardy. Even school kids know that part of the Fifth Amendment to our Constitution guarantees that no one shall “be twice put in jeopardy for the same offense.”  However, many years ago the Supreme Court came up with the fiction that a State (like Georgia, or Alabama) is a separate “sovereign” or government from the very different “sovereign” that is the government of the United States itself.  In other words, the feds are different from the states.  The unfortunate corollary to this principle of separate sovereigns is that you can win a criminal case in federal court, and a state can bring the very same charge against you without violating the double jeopardy rule. First time I had this happen, I was livid, for we’d cheated the other side fair and square in the first State-court trial and it seemed so grossly unfair to let the feds have a second whack at my client.

So, the Supreme Court has a new case that was argued today that might be the vehicle through which they change this dumb old dual-sovereignty double jeopardy rule. The case is Terance Gamble v. United States.  The case began in 2015, when Gamble was pulled over by police for having a faulty headlight. The cop smelled weed, searched Gamble’s car, and found two bags and a gun.  The great State of Alabama charged Gamble with violating state drug laws and with being a previously convicted felon in possession of a firearm. Mr. G. got one year in prison.  Then the feds picked up the exact same case, and brought the exact same charge of being a felon in possession of a firearm.  Mr. G. got almost 4 additional years for the federal case, was understandably pissed, and appealed.  In kind of a surprising move, the Supreme Court finally accepted the case for review. Continue reading

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The media and “the Internets” are all agog over yesterday’s filing in the Mueller Investigation by which the Office of Special Counsel said that one of its cooperating witnesses in that federal criminal case, former General and National Security Advisor Michael Flynn, has provided “substantial assistance”.  I’ve been handling federal criminal cases for over 35 years, and have been on the “giving” and “receiving”end of substantial assistance.  Despite the furor in the media, I wanted to talk a little about how these things work in the real world.

For starters, the idea that those who cooperate with prosecutors get a better “deal” is not exactly news. This practice of trading info for jail time is probably as old as crimes and criminal justice systems.  However, the absolutely horrible 1984 Comprehensive Crime Control Act, inter alia, wrote this practice into federal criminal law.  For the first time, this law created specific statutes, Guidelines and Rules of Procedure that encapsulated the practice of rewarding someone for “snitching.” Continue reading

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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.

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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.

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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.

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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.

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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

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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