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Super Lawyers - Paul S. Kish
AV Preeminent - Peer Rated for Highest level of Professional Excellence

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To the person who stumbled across this: I am a semi-regular blogger whose office is in Atlanta, and I discuss federal criminal cases, and the profession of being a lawyer who represents people and/or companies who are charged with crimes.  Yesterday I was meeting with a client who will be pleading guilty in the near future.  Here are some common aspects of that process.  This all happens AFTER me and my client have gone at length through our options (trial versus plea) and after we have done all of our negotiating with the prosecutor.

First, there is the plea agreement.  It is absolutely necessary that the attorney and client review this, together, and in detail.  Even the most sophisticated clients are often surprised about the verbiage that prosecutors insist on being placed into a plea agreement document.  And, even the most experienced lawyer sometimes fails to remember all of the boilerplate that is in a “standard” plea agreement, so it is always worthwhile to go over the document with the client line by line. Continue reading

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I am currently working on a federal criminal appeal that will go to the lovely building a few blocks away that houses the United States Court of Appeals for the Eleventh Circuit here in downtown Atlanta. The appeal involves a “jury instruction”, which means the rules of law that the trial judge provides to jurors at the end of a trial to assist the jury in deciding whether the prosecutor has, or has not, proven that the Defendant is guilty as charged.  Working on this appeal caused me to think back about how I learned of the importance of jury instructions in a federal criminal case.

My interest in federal criminal cases began when I “clerked” for a couple of federal judges directly out of law school.  A federal judicial clerkship is a great job, you work for the Judge, and help him or her with research, writing opinions and anything else the the Judge wants you to do.  You also get to see lots of cases up close, and after a while you start to realize that you might actually be able to do as well, if not better, than some of the lawyers who have cases in front of your Judge.  Along the way, you learn a whole lot more “law” than they ever taught in Law School.

Judge K was the first one for whom I clerked.  He was great, let me sit in on anything and basically gave me a tutorial on what was happening in real time: “Paul, this lawyer is trying to protect the record, while this other lawyer is trying to get me to make a mistake for a possible appeal”, and the like.  Judge K also knew I was interested in possibly becoming a federal criminal defense lawyer, so he let me sit in on just about every trial of that sort.

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Attorneys who, like me, spend most of their time representing people accused of federal crimes know far too well what the academic researchers and writers call the “Trial Penalty.”  This is the well-documented aspect of the federal criminal justice system in which any person with the nerve to stand up to the federal government in a criminal case receives an inordinately huge punishment, or penalty, simply because that person decided to use the Sixth Amendment’s promise of a jury trial.  Here is a recent group of articles in a highly respected journal discussing various aspects of the “Trial Penalty”.

The research is clear.  Trials are down, way down.  Punishments are going up.  But, punishments for the rare few who dare to challenge “the feds” in court are really going up, higher and higher. Continue reading

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It was a bad day recently here in Atlanta when I learned that some clients had been indicted for some federal crimes, even though we have been trying for years to convince the prosecutors that no charges should be brought.  Sometimes, criminal defense lawyers fail to adequately explain their clients about  the process that happens on the first day in court.  Many people have never been through the criminal justice system, so they are completely unfamiliar with the process.  I always try my best to make sure that my clients are aware of the various things that will happen on the first day, and this post is a summary of what my conversation is like for such clients.  The process is basically the same in the federal courts here in Georgia and throughout the country (with a few unique local features from time to time).

Most times, there is an “indictment”, which is the formal document that sets out the charges.  In the majority of cases, this leads to an arrest warrant.  I always try to convince prosecutors to let me surrender my clients to the agents who have the job of carrying out the arrest warrant.  This way, we avoid having the agents go to the house for a surprise arrest, which is both unnerving to the client (and their family) as well as being dangerous for everyone nearby (how would you feel if you saw armed people sneaking around your neighbor’s house in the early morning hours?) Continue reading

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This happened recently to someone in Atlanta, but it also takes place everywhere else in Georgia, Florida, Alabama, North Carolina and all over the country.  The FBI or some other federal criminal investigation unit shows up at someone’s front door, wanting to ask questions and possibly to get the person’s cooperation.  What did that person do?  He was polite, he got the agent’s contact information, he provided some general information demonstrating a willingness to cooperate without admitting to anything criminal, and then, most importantly, he called me.

Nobody really wants to have a criminal defense lawyer, but sometimes, people need us. This incident was similar to what my family members in the health care field do when medical emergencies happens.  They jump into action, just as I did the other night

This man called me at 8:30 pm on a weeknight.  I already had a long day, was doing some chores before a little relaxation time, and then his call came.  I spent the next several hours on the phone with the client, with the FBI Agent, emailed back and forth with the prosecutor, did Internet research about the specific situation, and made arrangements to meet the client at my office the next morning.  The client and I then spoke in the morning at my office for several hours, and like medical personnel when someone comes into the emergency room, I then needed to do a quick evaluation and set out a strategy even though I only had several hours’ worth of information.  I told the client my evaluation, and we then embarked on the strategy I recommended.

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Here in Atlanta and other federal cases that I handle throughout Georgia, Florida, Alabama and other states, lawyers often chuckle (and once in a while enjoy a full belly laugh) at some defenses I come up with once in a while.  Here are a couple.  Now, remember, these are reserved for certain fact patterns, and these defenses are not going to work in every case.  Still, it is worth remembering that these are “real” defenses, and work every once in a while.

One of my favorites is a defense that I affectionately call “the wrong courthouse.” Some cases are  bought in federal court, even though there is a very slim or tenuous connection to the federal government.  The Feds usually try to get past this thin connection by using the “Commerce Clause“, found at Article I, section8 clause 3 of the Constitution of the United States. Continue reading

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I am reviewing the Discovery (meaning the evidence) in a somewhat old federal criminal case that has ties to both Atlanta and North Carolina.  My client is accused of a drug crime, and from the indictment and other materials it appears that the prosecutors contend that there is a mandatory minimum penalty of 5 years in custody, and up to a potential maximum of life in custody.  Obviously, this is a very serious matter.  While this case and the potential penalty are each very serious, the possible sentence caused me to reflect on how far the federal criminal system has come in the 37 years I have been involved.

I started in 1982, and way back then, there were no mandatory penalties, no Sentencing Guidelines, and anyone who got a custodial sentence for a federal crime generally was eligible for early release, or “parole.”  Things began to change in the middle of the 1980’s. Drug crimes started getting more violent.  Then, in 1984 Congress created those Sentencing Guidelines, a mandatory and overly mechanical system for imposing harsher and harsher penalties. At the same time, they did away with parole, and our clients entered a system where they had to serve the entire sentence, other than a potential small reduction for “good behavior.” Continue reading

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With apologies to the late great Kenny Rogers (who had a house not far from mine in Atlanta) ,  part of the federal criminal defense lawyer’s job is to decide whether or not he should turn over “good” defense evidence to a prosecutor BEFORE an indictment is issued in the hopes that no charges will be brought.  On the other hand, if the prosecutor is going to bring charges anyway, sometimes the criminal defense attorney can get more bang for his or her buck by holding off on revealing the “good” stuff and using the element of surprise during the lead-up to trial.  As old Kenny sang “ya gotta know when to hold ’em, know when to fold ’em.”  Here are some of the considerations that go into this part of being a criminal defense attorney who specializes in federal criminal matters and white collar crimes and appeals.

Many federal prosecutors will tell a Defendant that the Government is on the path toward getting an indictment.  In this scenario, the prosecutor will send what we call a “Target Letter” to the prospective Defendant.  The letter basically says that charges are likely, gives a brief outline of the charges, and tells the person that he or she might want to consider getting a lawyer to talk it over BEFORE the charges are brought.  As a general rule, prosecutors will offer some slight benefit to a person who agrees to plead guilty shortly after getting one of these Target Letters.  Prosecutors also use these Target Letters to get potential Defendants to cooperate against more involved or culpable people, or higher-ups in an organization.

Like many federal criminal defense attorneys, it is very common for clients to come to me after they get one of these Target Letters.  Like many lawyers, I usually will reach out to the prosecutor who wrote the letter to get a somewhat more detailed sense of what the Government is looking at, the client’s potential exposure, the stage of the investigation, whether other people have been charged and/or sentenced, and any other pertinent details.  I then meet the client to get his or her side of the situation.  Here is where it starts to get tricky.

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I have several federal criminal cases in Atlanta and other parts of Georgia involving allegations that my clients dealt in marijuana.  Some folks in other parts of the country also have contacted me recently about federal criminal prosecutions in states where the local laws permit personal use and state-sponsored sale of marijuana.  In virtually all of these cases, someone always asks: “But I thought Pot was legal? How can the federal government prosecute me (or my loved one) if the state where the federal court is in lets people use this drug?”

One of the less well-known parts of our wonderful Constitution is called the “supremacy clause.”  If you are interested, you can find it in Article VI, the second paragraph.  Here is what it says: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The supremacy clause makes a lot of sense for many aspects of life in a democracy.  For example, things would be a bit untidy if the law on how to build and maintain a highway changed at the state line separating Alabama from Georgia.  Keeping some level of uniformity means that our people can expect the same basic guidelines and laws as we move from place to place in this enormous and beautiful land.

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Readers know that from my law office here in Atlanta I work on and travel around the country to places where I represent individuals and companies accused of federal crimes.  I also pontificate on occasion about the importance of keeping current in order to do this kind of work.  A case issued three days ago by the Supreme Court reminded me of this need for lawyers to keep up with recent developments in the law when defending their clients.

The case from the Supreme Court was United States v. Davis  which was the latest in a series of decisions in which the highest court in the land tried to figure out what Congress meant when the legislature enacted a series of tough-on-crime laws back in the 1990’s   These laws either impose more severe punishments for people with prior serious crimes, or on people who use guns in current serious crimes.  These laws all have a common feature; an attempt to provide a very broad definition of what is called either a “crime of violence” or “violent crime.” The problem in all of these laws is that in trying to create this broad definition, Congress failed to really say anything specific in what are called the “residual clauses” from these statutes. Continue reading

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