Articles Posted in Uncategorized

A good rainy Wednesday morning here in my Atlanta office for reviewing some of the discovery materials in yet another federal criminal case I am handling.  Plowing through these materials reminded me of several important lessons I have learned during the 40 years or so I have been representing folks accused of federal crimes here in Georgia and other parts of the country.

As I have posted about previously, federal criminal cases are highly complex, and the “discovery” materials are often daunting for attorneys unaccustomed to handling such matters.  By law and based also on various rulings from the U.S. Supreme Court, prosecutors are only obligated to turn over certain types of evidence prior to trial.  However, with the explosion of data in the past several decades the practice is that many prosecutors turn over anything and everything that is remotely related to the case.  The result is that lawyers are often drowning in data as they try to piece together what happened and how to defend against the allegations.

One of the tricks when reviewing this glut of materials is to do a quick overview of what has been turned over.  Next, the attorney and his or her staff need to begin searching, using various software tools and other aspects of artificial intelligence.  Gone the days when the lawyer touches and reviews each and every piece of paper in the file, because that would take the rest of his or her life in cases such as one I am currently handling which has 15 terabytes of data (and we are still many months away from trial)!  Another key is to try and figure out how the other side is handling the case and sort of replicate their tracks through the maw of material.

As part of my work being a criminal defense lawyer in Atlanta and elsewhere, I recently gave a speech to some attorneys about civil asset forfeiture, which is the legal proceeding through which the police seize and then “forfeit” property.  The seizure is often part of or accompanies and is parallel to a criminal investigation.  Some recent matters made me think more about this whole process, and how myself and other criminal defense attorneys need to do a better job in protecting not only our client’s freedom, but their property as well.

The first matter is a recent article that discusses the Supreme Court case from a month or so ago in which all nine justices agreed that the Constitutional protections against “excessive fines” means that there needs to be some proportion between the crime and the property seized by the police even if the case is in the state court system.  That was the now-famous Timbs case in which the police took a $40,000 Range Rover that Mr. Timbs had bought with the proceeds from his parent’s estate.  The State of Indiana decided to seize the vehicle through the forfeiture process simply because Mr. Timbs foolishly had a relatively small amount of drugs in his possession when he was stopped.  The article points out how the case merely means that the constitutional protection against an excessive seizure applies to all the States.  The Timbs decision did not says what is, or what is not, excessive.  The article points out that question that will be left to future rulings.  The author quotes lawyers on both sides, prosecutors and defense counsel.  A prosecutor who was quoted claimed that she gave up on seizing some property because the value of the seized item was so small that it did not justify the amount of work she was going to have to put into the forfeiture process.  As a result, she supposedly let the defense attorney get the property back for his client.   Apparently, fairness, justice and equity do not matter all that much to this prosecutor, for she is simply worried about how many hours she works. Continue reading

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.

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

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 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

To those who may not often read these missives or do not know me, I am a criminal defense lawyer in Atlanta, Georgia who specializes in federal criminal defense and criminal appeals.  This is me: 

Many people who do this kind of work find themselves representing clients who look at the criminal case differently than their own lawyer.  Such differences of opinion lead to the interesting constitutional question of who is in charge of the defense, and what decisions are reserved for the lawyer and which ones are exclusively reserved for the client.  The United States Supreme Court recently issued the opinion in McCoy v. Louisiana, which partly answers a few of these questions.   This decision reminds lawyers that our Constitution means that a criminal Defendant possesses the fundamental right to make decisions about his defense and prevents a defense lawyer from going against his client’s instructions.  This rule holds true even  when the attorney’s  strategy seems to be right on the money.

Robert McCoy was charged with killing his estranged wife’s son, mother and stepfather.  Prosecutors decided to ask for the death penalty.  Mr. McCoy told his defense lawyer that he was innocent and the the local police were framing him because he had revealed the cops were all drug dealers, which sounds a bit far-fetched.  The lawyer, who from all accounts sounds to be an accomplished attorney, looked at the case differently.  The attorney believed the case against the client was “overwhelming”.  A common defense tactic in death penalty defense is to see if the prosecutors will “take death off the table” if the client will plead guilty.  That did not work, and with the trial approaching, the defense lawyer planned on telling the jury that McCoy killed the victims,  hoping that this tactic would convince the jury to sentence McCoy to life in prison, rather than death. The client, McCoy, was furious, but the lawyer did as planned, telling the jury that McCoy was “crazy” and “lives in a fantasy world.” The strategy failed, and the jury found McCoy guilty and sentenced him to death