IOWA CHAMPION

The wise lawyer

The older I get (I'm 36 now - still relatively young) and the longer I do this job (closing in on ten years) the more clear my understanding of  world becomes. In one of my favorite movies, Groundhog Day, Bill Murray makes a particularly deep comment about God.  "Maybe he's not omnipotent" ponders Murray, "Maybe he's just been around so long, he knows everything."  A stand up comedian that is escaping me at the moment (maybe Bill Cosby or George Carlin) explained wisdom the same way.  It can only be gained from being around a really long time, like 50 or 60 years.  A 25 or 26 year old recent law school graduate may be smart, but they are not wise. It takes time to become wise.  You have to experience some of life's highs and lows to become wise; get in the trenches and lose a case you should have won, and win a case you should have lost.  After ten years at this I am just starting to get the feeling that I have some wisdom, maybe that's part of the reason I wanted to start blogging.

One piece of wisdom I've acquired is that perhaps the most overlooked aspect of what criminal defense lawyers do is interpersonal interaction (deal with people).  Sure we have to know the law and be able to spin creative legal arguments from whole-cloth. But the personality makeup of your client, the witnesses, the judge, and the prosecutor can all have as important an impact on the case as any Supreme Court case or surprise witness.

Along those lines I am also coming to the realization that as far as dealing with the lawyer on the other side of the case (prosecutors mostly for me), you have to remember that you are dealing with a human being, and sometimes you have to deal with a defective one. If you start with a person that is thoughtful and friendly, you are generally going to have a thoughtful and friendly lawyer on the other side of your case.  Really, that is about 80% of the lawyers out there. It doesn't mean they aren't trying to crush you and send your client to prison for life; but they will play nice and follow the rules. The same is then true of negative personality characteristics.  If someone starts out a belligerent, short-tempered, bully, they will probably act that way as opposing counsel at some point.

Another way to think about this is this: The lawyer that refuses to call you back is probably the same person that always lets his cell phone ring through to voice mail.  The lawyer that lies to you is the same guy with a full shopping cart of groceries in the express checkout lane. The lawyer that tries to bully your client is probably the same person jumping the case of the 14 year old McDonald's drive through clerk for not giving him enough ketchup.  Granted everyone has a bad day, some people a bad year, but when its all said and done the lawyer in the courtroom does not suddenly change his personality when he goes home.

Obviously, this fact of life can sometimes present difficult situations to deal with in your cases. So what do you do?  Honestly, I'm not sure I'm wise enough to know.  Currently, I try to practice the forgive and forget method.  You deal with the situation as best you can and then try to start fresh on the next case.  I'm not sure criminal defense attorneys have much choice but to go this route. There has been a substantial decrease in the turnover rates in prosecutor's offices here in Iowa and as a result you deal with the same prosecutor on half a dozen cases or more every year. As time goes on I am finding that method is becoming increasingly harder to practice because I see the same problems continually crop up with certain attorneys. Most of the time I'm not alone. The frustration is often magnified when you hear your colleagues going through the same problems with the same attorneys too.  Other than learn some new deep breathing exercises I'm not sure there's much else you can do. I'm hoping that in the next ten years I get a little wiser in this area.

The Best Defense Possible

The recent reversal of Heidi Anfinson's murder conviction on grounds of ineffective assistance of counsel has me thinking about the strategic choices criminal defense attorneys have to make when choosing a defense. 

Generally speaking I think you can characterize defense theories into two categories. The first would be an outright denial: an "I didn't do it" defense.  The second type would be mitigation defenses: "I did it, but...". 

Which type of defense you choose shapes not only the strategy you take in defending the case, but the tone in which you do it.  It is much easier to be aggressive in the defense of a client that is basing his defense on "I didn't do it".  There isn't a lot to think about with that defense.  Expert witnesses are generally not needed, maybe in an OWI case or if you had an issue with a false confession or misidentification of the defendant by a witness.

With a mitigation defense, you are often times only attacking a portion of the State's case and evidence against you.  You are admitting that you may have done most, if not all of the actions that you are accused of, but you are saying that because of some intervening reason, you should not be held criminally responsible for your actions.  Because you are fighting fewer issues with these defenses it focuses your discovery issues (production of evidence by the State) and generally makes for a less confrontational pretrial process.  Often times these case become a "battle of the experts".

So which defense is right for you and your case?  It depends completely on the facts of the case.  Criminal defense lawyers (believe it or not) are ethically bound to not present evidence that is not truthful.  I mean that with all seriousness.  If a client comes to me and tells me he did do it but he's got some friends that will say that he was with them at the time of the crime, I am not going to put that defense forward.  Its a lie.  If the client comes to me and says he didn't do it and he has friends that will say he was with them at the time of the crime I will put that defense forward, even if the State has some evidence against that. Obviously the more evidence the State has that will overcome a particular defense can make you think twice about whether you want to put on that defense, but you aren't ethically prohibited.  So the facts are the key.  I will always review the affirmative defenses listed at Iowa Rule of Criminal Procedure 2.11(11) no matter what the allegations is. If it is an assault case, drunk driving, theft, or murder, I will always look at those defenses.  Granted, in an OWI case, the review is much quicker, since those defenses are almost never used, but you always do it to be sure. 

Where Heidi Anfinson's attorney ran afoul of his responsibilities as a criminal defense lawyer was that he ignored evidence that would assist a particular defense. If people around the defendant are saying that there were mental issues with the defendant you have to look into it.  If you do nothing you are not effectively representing your client.  If Anfinson's attorney would have looked at the information, requested medical records, and done a thorough investigation before rejecting that defense, this case would nothave been reversed.  Lawyers are permitted wide discretion in selecting the defense to present at trial. If they decide that there is a reason not to go with a particular defense, then that is their call. If the defendant disagrees, they need to get a different attorney. But the discretion granted to an attorney to choose a defense is based on the assumption that the attorney has looked at ALL of the defenses available and has done his job. When you ignore defenses or don't do the work needed to make an informed decision on what defense to choose, it calls into question the result in the case and whether or not justice was really done.

Defending criminals not as dangerous as crab fishing

If I could be someone else for a day, it just may be Sig Hansen from Deadliest Catch. He's a combination of daredevil and savvy businessman, with a kick-ass boat, working in what must be one of the coolest (but deadliest) jobs around. When people find out I practice criminal law, they sometimes give a reaction as if I was a crab-boat captain.  "How can you go into a jail and sit next to a murderer....I'd be so scared".  This is one of those situations where the initial thought (that your in danger because you're in room alone with an accused murderer) is completely wrong. You are actually extremely safe, because at that point you are the only one that is sworn to help that person...you are their lifeline.

Houston Criminal Defense Lawyer Mark Bennett recently asked us whether criminal defense work is a dangerous profession. His reflections on the subject were initiated by this post from the Blog, Judgment Day:

While many attorneys—especially those practicing criminal defense—have received threats from clients, more often than not it’s just empty talk. I think many attorneys become numb to threatening phone messages and letters, primarily because everything has worked out fine in the past. Two stories over the last week, however, remind us to take these situations seriously.

Mark's conclusion is that we are not in a dangerous profession, and I agree. Criminal defense attorneys are mostly spared their client's ill will and/or hostility. I would bet they deal with far fewer violent clients than attorneys practicing family law or personal injury.  As a criminal defense attorney I have never had a client make even a veiled threat to me, and have never been assaulted (although there have been a couple times when I thought it could happen).  I got more abuse as a drug prosecutor than a criminal defense attorney, including being spit on and outright threatened.  As Mark said, criminal defendants usually mind their P's and Q's because of the situation they are in; it is different in something like family law, where the nature of the case drives people to insanity.

I went to law school at Drake University with a gentleman from El Paso, Texas.  His older brother had graduated from Drake Law about ten years earlier and was a general practitioner back in Texas.  The older brother practiced some family law, and in a divorce case he was handling, his client was murdered right in front of him at a deposition. The husband stood up in the middle of the deposition, pulled out a gun, and blew his wife away right in front of everyone.  Then he walked out the door and fled to Mexico. The real shocker came a few months later, when the man was captured and returned for prosecution.  He actually called my friend's brother, who witnessed the murder, and asked if there was any way he could represent him. He declined; it was a conflict of interest because he was a witness (and the guy was freaking crazy!). There have been many high profile cases where the outcome was more than just the client getting killed, usually the attorneys are next in line. That is one of the reasons I don't practice family law: it is way too emotional.

Now, I have heard of some defense attorneys getting punched, it does happen.  Usually it is with a defendant that is very outspoken and demanding, the one that will claim that there is a general conspiracy to convict him and everyone is in on it: cop, judge, prosecutor, and defense attorney. If a defense attorney is assaulted it is usually not because of performance issues, but a bid to get different counsel appointed.  Two of my colleagues were assaulted in the jail by one of their clients a few years back for that very reason.

The bottom line is that doing criminal defense in Des Moines, Iowa, is a heck-of-a lot safer than fishing crab in Alaska. While I'm happy about that, I'm kinda bummed we don't get our own cool reality t.v. show on the Discovery Channel.  Deadliest Brief?  Ice Road Lawyers?  .....its just not that sexy.

Better to be judged by twelve than carried by six

I've had two or three recent assault cases that my clients have wanted to pursue the affirmative defense of justification (self-defense).  The justification defense is a hard defense to prove.  Although it adds an element to the State's case because they now have to prove that the defendant was not justified in using force on the other person, it is can be an easy task because of the law requires you to seek an alternative course of action if available. 

The Iowa Bar Association's Criminal Jury Instructions spell out the requirements of self-defense:

If the State has proved any one of the following elements, the defendant was not justified:

1. The defendant started or continued the incident which resulted in [injury] [death].

2. An alternative course of action was available to the defendant.

3. The defendant did not believe he was in imminent danger of death or injury and the use of force was not necessary to save him.

4. The defendant did not have reasonable grounds for the belief.

5. The force used by the defendant was unreasonable.

In lay mens terms they can be thought of like this...

1. You started it, so you can't claim self defense.
2. You should have run away.
3. You didn't REALLY think you were going to be killed or injured and didn't really NEED to use force to protect yourself.
4. You shouldn't have used force because the average person in your situation wouldn't have felt there was an imminent threat of injury or death.
5. You shot an unarmed man, kicked him when he was down, or threw one punch too many.

As I said earlier, the one that typically sinks the claim of self-defense is #2.  That is the one I see prosecutors arguing most, and the one that comes up most when talking to clients. The reason it causes problems for claims of self-defense is that the law does require you to attempt to avoid the confrontation.  The instructions on self-defense further state that:

if a defendant is confronted with the use of unlawful force against him, he is required to avoid the confrontation by seeking an alternative course of action before he is justified in repelling the force used against him.

That is all well and good, but many times with self-defense cases you are talking about situations where a threat is suddenly present and the defendant is put in a situation of having to make a snap decision about how to handle it.  The classic bar fight is a good example:

You are at a bar when a drunk patron spills his drink on you and then starts cursing you out for "bumping into him".  You try to calmly talk to him or even outright ignore him but he persists.  After a few seconds he grabs your shirt...what do you do?  Do you collapse into the fetal position, cover your ears, and scream for help?  Do you attempt to bolt for the nearest exit hoping he won't get any punches in on the back of your head?  No...most people probably either break his grip forcibly, which probably leads to punches being thrown, or they just start punching. 

The prosecutor though will say you should have ran, screamed for help, or tried to call 911 on your cell phone.  Usually I will then try to explain to the jury that a defendant has a short amount of time to make a decision about what to do, and that there are no perfect choices.  You ether use force on the person or risk them using it on you....as Booker T. Washington once said....It is better to be judged by twelve, than carried by six.

Dealing with disappointment 101

I had a bad day today.  A client didn't get the outcome we were hoping for at sentencing.  He's not going to prison, so that's a plus, but I wasn't able to convince the sentencing judge to grant the client a deferred judgment, so he's now a 21 year old convicted felon. I knew it was going to be an uphill battle, but that doesn't lessen the impact.  After we were done I had to explain the situation to his mom and dad...and grandfather....and aunt.....and uncle.  Not a fun afternoon.

This line of work can be very unfulfilling sometimes.  There are days when it is all you can do to convince yourself that being a criminal defense attorney does matter.  Its the nature of the beast I guess.  The criminal justice system is adversarial in nature, so there is always going to be a "winner" and a "loser".  Even where the parties agree on a recommendation, the cases where the defendant or the State doesn't feel that there was some issue that didn't go their way are few and far between.

One of the hardest things to learn as a defense attorney (or a prosecutor for that matter) is how to deal with a bad outcome in a case.  It is not taught in any classroom at law school.  Even in the clinical programs it isn't something that most law students get exposed to. I was lucky enough to get a lot of those experiences (good and bad) as a prosecutor.  I can clearly remember a crack cocaine case where I took a bad beat. I was still a fairly new drug prosecutor with Polk County and I nearly cried when I was talking to the case agent afterwords.  I was at a loss to explain what happened and had no answers.  It basically came down to...sometimes you lose when you should win.

When you are a criminal defense attorney, a bad beat is even harder to take, and endlessly harder to discuss with the client.  The conversation will go something like this:

Defendant: So, what happens next?

Defense Attorney: Well, I go back to the office...and you go to prison.

You can just about imagine how hard that is to explain.  It's also emotionally draining, because you know that the client was relying on you.  You tell yourself that the facts make the case, and that is true, but it still stings. It is clearly my least favorite thing about this profession. The only thing to do is to pick yourself up, dust yourself off, and get back on the horse.  There are other people out there who need someone to fight for them. Besides, if you can't handle disappointment, you shouldn't have gone to law school in the first place.