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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.

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

I have tried around 100 federal criminal cases here in Atlanta over my 35 year career. A recent report from the National Association of Criminal Defense Lawyers (“NACDL”) demonstrates that trials in federal criminal cases are almost “extinct.”  The report shows that a mere 3% of Defendants take their cases to trial, mostly because of the mismatch in bargaining position between the defense and the prosecution.   Some people want to react to this by saying” Why have trials for guilty people anyway?” For those who might have such a reaction, I can only hope that it is never you or your family who finds themselves facing a federal investigation or prosecution.  Furthermore, if we think it through a little bit, we will see that letting the prosecution have excess power, resulting in virtually no trials, is almost like the situation that led to the enactment of the Endangered Species Act. 

For starters, everybody is entitled to a trial on criminal charges, it says so right in the Sixth Amendment.  However, the almost unmatched power of federal prosecutors brought about by various statutes enacted by Congress, along with the draconian Sentencing Guidelines, means that even innocent people are now pleading guilty.  The report sets out what I already know, those who plead guilty get far less punishment.  The report notes two seemingly equal Defendants, one who “flipped” and cooperated against the other who went to trial.  You guessed it, the flipper gets a couple of years, the Defendant who had the gall to assert his Constitutional right to trial got 45 years! My own recent experience is the same, my client got ten years while the far more culpable co-Defendant who pled guilty and testified got a mere 24 months!

The NACDL report concluded that guilty pleas have replaced trials because anyone who exercises his or her right to take the case to a jury is facing “exponentially higher sentences.” Defense lawyers and prosecutors now spend most of their time “negotiating”.  Judges rarely preside over trials, and therefore have no or very little experience when such a case comes before them.  However, when just about every case ends after a long negotiation instead of a public trial, we all lose.  The public no longer sees the facts of a case.  Prosecutors no longer have to prove their allegations beyond a reasonable doubt.  And, most importantly, some clearly innocent people will “take a plea” instead of taking the chance that their life will be ruined by an excessively long sentence.  Like the Endangered Species Act, we need a new law to prevent the extinction of the right to trial.

Swear to God, same thing happened to me!  Go to a party on a Saturday night, cops bust in,  homeowner claims to “know nothing”, everybody gets busted and goes down to the police station.  Officers make arrests for trespassing, since the homeowner dummies up.  That is basically the fact pattern from District of Columbia v. Westby, to be argued in the Supreme Court soon.  However, there is no crime of “trespassing” if there is nothing to suggest that that the partygoers knew or should have known that they were entering against the owner’s will.  The arrested folks brought a lawsuit against the arresting officers for false arrest, they won a judgment, and the DC police brought the case to the Supreme Court, arguing that its officers had probable cause under the Fourth Amendment to make the arrests.

Westby is a bit more interesting, and salacious, than my aborted party that one Saturday eons ago.  First, there was someone named either “Peaches” or “Tasty” identified by some of the partiers as the person who told them about the shindig.  Also, when the cops arrived, some of the women were selling lap dances, some had money hanging out from their undergarments, and most shockingly, the officers smelled marijuana.   Continue reading

Like the swallows returning each year to Capistrano, we are in the midst of the annual flight to Justice, when the U.S. Supreme Court decides which cases it will review at the beginning of its new year.  On the first day when they announced several cases for review, the Supreme Court demonstrated that this “Term” will have a big impact on the type of constitutional issues that we regularly face when representing people or companies under investigation or being prosecuted for alleged crimes.

I will do a series of posts about the new cases.  These subsequent posts will give more detail and some of the juicier aspects of the case to show that these are not just dry legal disputes, but instead involve real people and lawyers fighting for our rights.  But today, I’ll just do brief reviews of the 3 big criminal justice cases announced today that will be on the Supreme Court’s plate this upcoming Term. Continue reading

Here at beloved K&L we do a fair number of appeals in criminal cases, mostly in federal court but occasionally in the state court system. Winning an appeal in a criminal case is always hard, it takes lots of work to understand what happened in the lower court, it takes even more time and energy to figure out all the potential legal issues, and then it takes more time still to write, revise, refine and get the arguments down in a manner that is both correct yet easily understood. Even when we do all that, we face one more hurdle before we can get relief for our clients; the “Harmless Error” rule. A case decided last week by all 11 Judges on the federal Court of Appeals here in Atlanta clearly shows this difficulty. The decision is United States v. Roy, and can be found here.

First, the “harmless error” rule. For a long time, courts reversed criminal cases whenever the trial judge made an error or mistake, such as allowing a prosecutor to use inadmissible evidence, or failing to properly instruct the jury on the elements of a crime. About 50 years ago the courts began using a rule that looks to whether the error or mistake “harmed” the Defendant, or if the mistake was just a “technicality” and had no impact on the overall result. If the trial judge made a mistake, under the harmless error analysis the court of appeals then looks to whether the error contributed to the jury’s verdict. The beneficiary of the error (meaning the prosecutors in criminal cases) had the burden on appeal to show beyond a reasonable doubt that the error did not contribute to the conviction. So far, so good. Continue reading

My law partner Carl and I represent lots of people who are charged with federal crimes, both here in Atlanta and throughout the country.  Each of us recently had cases where we believed that our clients were innocent.  In each case, we also each faced federal prosecutors who aggressively went after our clients.  All charges were dismissed recently against these clients, which leads to some thoughts as to why this happens in some cases but not in other situations.

Not everyone recognizes the differences between how federal criminal cases are brought and the system used in most state court systems.  In the state systems, investigators bring their work to an Assistant District Attorney.  For the most part, these assistant DA’s cannot refuse a case that the police bring to them.  In federal court, on the other hand, the Assistant United States Attorney (or “AUSA”) has broad discretion to accept or reject just about anything brought to him or her by one of the federal investigative agencies.  This greater discretion means that federal prosecutors usually weed out, and reject, the weakest criminal cases.  Because AUSA’s have greater discretion to turn down less strong cases, they end up winning far more of the matters that they do take on.   Continue reading

The online Merriam-Webster dictionary defines the root word of “fascination” as “to transfix or hold spellbound by an irresistible power.”  Since 1971, the Supreme Court of the United States has on all least 13 occasions directly addressed various aspects of the federal gun crime found at 18 U.S.C. §924(c).  A total of forty-three Supreme Court cases involve people convicted of this law, even if the issue did not directly involve the language of this statute.  The High Court’s “fascination” with this statute continues, this time with a case out of Iowa, Dean v. United States, the docket for which can be found here.  The Supreme Court granted review of the case this past October, and will hear arguments on the last day of February, 2017.

Those of us who regularly practice criminal law in the federal court system generally refer to this statute as “924(c)”.  The history of the law is interesting, and somewhat relevant to current public debates.  In 1968, violent crime rates were rising, reaching a peak in the early 1990’s, after which they have dropped significantly.  The FBI numbers can be found on their database. Continue reading

As a criminal defense lawyer I often get questions as to whether there is a difference between a “regular” guilty plea and a “nolo” plea.  Technically, the latter is from the Latin phrase, “nolo contendre”, more or less translating into “no contest.”  A few days ago the United States Court of Appeals for the Eleventh Circuit, where we handle lots of cases, issued an opinion discussing the “nolo” plea, its ramifications, and issued a ruling as to when a prosecutor can make use of an earlier “no contest” plea.  The case is United States v. Green.

Mr. Green has had some previous problems with law enforcement, and his problems got worse when he was charged with new crimes.  He got out on bail, but only with the condition that he wear a GPS-monitored ankle bracelet.  He apparently removed the ankle monitor, so the police went looking for him at a woman’s residence where they figured to find him.  Once inside the master bedroom, the police saw a large jacket (and the woman was not that size), men’s shoes on the floor, and most importantly, a firearm and ammunition scattered around. They subsequently discovered the unlucky Mr. Green hiding nearby in the closet. The feds charged him with being a previously (12 times!) convicted felon in possession of a firearm, and he went to trial represented by a very capable Federal Public Defender. Continue reading

Here at our firm we do a fair number of criminal appeals.  Some cases come out of the federal courts, here in Atlanta, throughout Georgia, and occasionally in other parts of the country.  We also handle criminal appeals arising out of Georgia’s state courts.  As described in an opinion issued two days ago by the U.S. Court of Appeals for the Eleventh Circuit, Overstreet v. Warden, “The fundamental purpose of an appellate lawyer representing a defendant in a direct criminal appeal is to identify and argue bases for reversal of a conviction.”  The value of appellate counsel is based on his or her “examination into the record, research of the law, and marshalling of arguments on [the defendant’s] behalf”.   But what happens if the appellate attorney misses an issue?  The Overstreet decision is one of those rare cases in which a federal court of appeals overruled the lower federal court, and the state courts, in concluding that the attorney handling the appeal made such an egregious mistake that the Defendant was entitled to have some of his convictions reversed many years after the fact.

Johnny Overstreet apparently was no angel.  A jury found him guilty for a series of crimes arising out of robberies at five fast food establishments.  For each incident, he was also found guilty of kidnapping store employees.  Prosecutors successfully argued that Overstreet kidnapped the store managers by forcing them to walk back to a safe or office, and then return to the front of the establishment. At the time of Overstreet’s trial, Georgia’s kidnapping law required  even a “slight movement” of a victim in order to comply with the “asportation” aspect of this crime.   However, the following year, well before Overstreet appealed his own convictions, the Georgia Supreme Court reversed this “slight movement” test.  Under the new test, movement of a victim that is “part and parcel” of an independent crime, such as armed robbery, would generally not be considered asportation.  Even more importantly, two later cases with facts almost identical to Overstreet’s trial reversed kidnapping convictions based on the Georgia Supreme court’s new rule.

Here is where the problem arose.  The lawyer handling Overstreet’s appeal filed his legal papers 15 months after the new test for asportation had been announced by the Georgia Supreme Court, and several months after the other cases with identical facts had resulted in reversals.  The lawyer never mentioned asportation, the new cases, or any attack on the kidnapping convictions at all other than to say that the evidence was insufficient.  Not surprisingly, the state appeals courts did not look at nor reverse the kidnapping  convictions.