HEY MR. LAWYER, WHAT EXACTLY AM I PAYING YOU FOR?
I imagine that anyone who has ever hired a lawyer has asked themselves (or their lawyer) the same question. “Hey, I’m smart. I can read. I can write. I can speak. What exactly can an attorney do for me that I cannot do for myself?”
This is a fair question that all clients should ask themselves before and after they hire an attorney. There very well may be plenty of circumstances where you don’t need to hire a lawyer. But, rarely, in the realm of CRIMINAL LAW is that likely to be true.
How do you know if you need a defense attorney to help you with your CRIMINAL case? Try answering these questions. If you are able to discern the answers, you may not need a lawyer after all.
- You have been arrested for having drugs in your car.
- Did the police officer have reasonable suspicion to stop or detain you?
- What is reasonable suspicion?
- Was it proper of the police officer to search your car?
- Should he have gotten a warrant?
- Should the police officer have read you your Miranda rights?
- What are Miranda Rights?
- When exactly are they supposed to be read?
- If the police officer did something wrong, what do I do?
- How do I suppress the drugs?
- What does it mean to suppress evidence?
- Where do I start?
- What is a motion?
- What case law do I cite?
- What is case law?
- You attend your first court appearance. The prosecutor makes you a plea offer.
- Is this a fair offer?
- What is normally offered with other defendants?
- What is normally offered in other courts by other prosecutors?
- Is the judge more likely to say guilty or not guilty after trial?
- How will your plea of guilty affect your driving record, your job, or your military or educational opportunities?
At trial, the prosecutor wants the police officer to testify as to your background and some things he has heard about you on the street.
Is this testimony proper?
Are there rules of evidence that prohibit such testimony?
What are the rules of evidence?
Can you name one rule of evidence?
Are you able to argue an objection in front of the mirror without stammering or stopping?
It’s the night before trial. It’s 3AM. You have trial tomorrow at 9 am. You ask yourself:
DO I HAVE ANY IDEA WHAT THE HELL I AM DOING?
If you answered these questions honestly, you may very well have concluded that your best chance for success in court requires you to hire an attorney.
Let’s jump ahead. Let’s say you have hired an attorney to help you deal with a CRIMINAL accusation. What does your lawyer do?
Every lawyer has his/her own strategy. Here is what I like to do, and the order in which I do it:
1) I tell the court and the prosecutor that we represent you.
2) I tell the court to send any scheduling concerns about your case to me.
3) I ask for the police reports.
4) I read through the police reports very carefully – line by line – and see if the police officer/detective made any mistakes.
5) I see if those mistakes give us a legal argument to either get your case dismissed or resolved by way of a really good plea offer.
6) I look to see if the facts are good or bad for you.
7) If the facts are good, I see if there is a factual argument that will either get your case dismissed, or resolved in a way that id more favorable to you (i.e. a nice plea offer).
8) If the facts are bad for you and there are no mistakes to be found, then you and I have a very important discussion as to what your best options are.
9) At every stage of your case, I make sure that your rights are protected and that you are treated as fairly as possible by the prosecutor, the judge, the jury, and anyone else who thinks they are going to try to deprive you of your freedom and treasure.
A lawyer’s job is to make sure that you are treated fairly by the judicial process. Meaning, it is your lawyer’s job to make sure that the police didn’t take any illegal shortcuts when they investigated your case. It means making sure that the prosecutor’s evidence at trial falls in line with what is permissible under the constitutional protections, as well as under New Hampshire’s Rules of Evidence. It means making sure the judge presides over your trial and related hearings in a manner that is fair, impartial, and consistent with equal protection and due process under the law. It is your lawyer’s job to take emotion out of the case and insist that reason and rule of law reign supreme. It is your lawyer’s job to make sure you don’t’ become a whipping boy or scapegoat for all of society’s ills simply because you are seated at the defense table as an accused.
Lawyers are not mind readers; soothsayers; or miracle workers. Thus, it is not your lawyer’s job to guarantee you will be acquitted; declared not guilty; found innocent. Simply put, there is a lot more to lawyering than simply trying to “get a client off.”
That is not to say lawyers don’t try with all their might to defend you zealously. That is not to say that your lawyer will hold back on saying what needs to be said to try to get you the most favorable result possible. But, in a courtroom, as in life, reality rains. In some cases, it downpours.
So, if you drank too much, ran over your neighbor’s cat, crashed into a parked police cruiser, failed the field sobriety tests, failed the breath test, confessed to drinking 6 beers in 2 hours all while smoking marijuana – do not expect that your lawyer will simply waive a wand and make all of your problems disappear.
If you sell drugs to an undercover police officer on video who was previously honored as citizen of the year, do not expect that your case is open and shut in your favor.
If you decide to engage in relations with someone who is not old enough to drive, let alone go to the movies by themselves, do not expect that the your evidence, your explicit texts, your graphic emails or hand written letters will somehow be overlooked by a jury on account that you have never been in arrested before and you have a good job.
Of course every criminal defense lawyer dreams about and strives for a NOT GUILTY verdict on behalf of all his clients in every case just as all professional athletes dream about winning the big game. But as you already know, not every swing is a home run, not every shot makes the basket, and not every team makes it to the Super Bowl.
At the end of the day, you are paying your lawyer to help you where he can; to intensely study your case and the accusations made; to find the facts that help you; to minimize the evidence that hurts you; and to give you an honest opinion as to what you’re best options are.
Every case and every lawyer is different. But, after reading this article, Justin and I hope that you have a better idea about what exactly you are paying your lawyer to do once you hand over the check and say, “I am in trouble. Can you please help me?”
Shepherd and Osborne
Monday, January 26, 2015
Monday, January 5, 2015
Let me say it at the outset – DO NOT RESIST ARREST!
Harken back with me to the 1980’s where action movies dispensed more life lessons in two hours than you could find during an entire season of Dr. Phil.
When Rocky Balboa had problems with Apollo Creed, Clubber Lang (AKA - Mr. T), or the big Russian, did he challenge them to a street fight? No of course not. He saved it for the ring –with Coach Mickey in his corner. (And yes, I am purposely ignoring Rocky’s street fight with Tommy Morrison in Rocky 5. True Rocky fans don’t acknowledge that that move ever existed. Besides – Rocky 5 came out in 1990, so we’re good.)
In the first Karate Kid, did Daniel LoRusso succeed by fighting the gang of menacing Cobra Kai karate fighters at the high school dance? No – he saved it for the ring at the big karate tournament – with Coach Mr. Miyagi in his corner.
Do you see a common theme here? Good! Now stay with me on how all of this applies to getting arrested.
All year long I have seen on the news people either getting shot, injured, beaten, or “escorted” to the ground in police related encounters. After which, I have heard two divergent stories: The police say the suspect was resisting arrest. The suspect says (if he is still able to speak) that he was brutalized. Guess what? It doesn’t really matter who started to conflict – the law is clear: WHEN POLICE SAY STOP –YOU STOP! WHEN POLICE SAY YOU ARE UNDER ARREST – YOU ARE UNDER ARREST.
In the Ferguson, Missouri case, Michael Brown was shot by Officer Darren Wilson after resisting arrest on August 9, 2014. What can we learn from this case?
If you are told you are under arrest by a person you recognize to be a police officer, just do the following:
1) Say thank you or I understand
2) Turn around if told to do so
3) Make your hands visible - either out in
front of you, or on top of your head
4) Drop to your knees if you have to. Keep your hands visible
5) Do anything that lets the police officer know that you are not going to interfere with his right to go home to his family at the end of his shift.
2) Try to convince him you are innocent
3) Start reciting the Constitution
4) Quote Perry Mason or Thomas Jefferson
Just be quiet and let the officer put his handcuffs on you.
Mark, you are a lawyer! Why are you telling me to cooperate with police?
Hold on there, Chief!
I didn’t say “cooperate” by turning State’s evidence. I didn’t say take a breath test (good God don’t do that); I didn’t say to do field sobriety tests (don’t do those either); I didn’t say consent to a search of your car (never do that); I didn’t say for you to confess; I didn’t say for you to “dime out” your accomplices; I didn’t say for you to forget about your right to remain silent.
I said do not resist arrest.
Besides, anyone who has ever been declared not guilty by a judge or jury first had to be arrested and eventually taken to a courtroom. An arrest is not the end of the road, rather it is the beginning of your legal journey. Accept the arrest, be a good detainee, and call a lawyer once you get to the police station.
To find a dedicated criminal lawyer in New Hampshire - Call 595-5525
You mean even if I don’t think I should be arrested, I should just go willingly?
Yes. Exactly. If you go quietly, you will be taken to the police station. You will eventually be bailed out or brought to court where a judge can decide what happens to you. If you resist arrest by running away, fighting with the officer, or preventing him from putting his handcuffs on you, you will either:
1) End up in court with a “Resisting Arrest” charge (which I guarantee will be more difficult to get dropped than whatever you were being arrested for in the first place);
2) End up in the hospital due to having been:
a. “escorted to the pavement” or
b. “escorted across the hood of a police car”
c. “escorted” to some other unfortunate fate by way of mace, a baton (formally known as a “billy club”), or a K-9 unit (formally known as a sharp toothed, snarling mammal that looks like Rin Tin Tin and bites like Cujo); or
3) The morgue.
So where do I get to air my grievances and stand up for my rights?
Save it for the ring – which in your case is COURT. Think of it as the “ring of justice”. Remember the examples of Rocky and Karate Kid? Both movies had our protagonists resolving their disputes in a formal competition, with rules, and procedures, and fair play. They had coaches on their side and in their corners. They had referees to make sure a fair fight happened.
That is what court is all about – resolving your case is a structured setting with rules and fair play. Instead of a referee you have a judge. Instead of a coach, you have a lawyer in your corner – whose only job is to look out for you.
I am not saying that you have to be happy about being arrested. No one expects you to smile about the fact that you are being handcuffed and booked and put in a cell for a few hours with a dirty toilet.
But I am saying that no matter how awful it is to be arrested – it only gets worse when you resist arrest. And like I said before, a “Resisting Arrest” charge is almost impossible to negotiate away with police, prosecutors, or judges. No one likes to see a “Resisting Arrest” charge.
Why? Because anyone who has anything to do with the American criminal justice system (including yours truly) believes that legal disputes must be fought in courtrooms between lawyers and not on the streets with police.
Do not resist arrest. What is resisting? Damn near anything other than turning around, giving the officer your hands, and letting him handcuff you.
Every day (and especially on Monday mornings) I see “Resisting Arrest” cases where my clients thought it would be helpful to run from police, refuse to turn around to be cuffed (“No – wait officer! I wasn’t done telling you about my rights!”), or refuse to get into the police car, etc.
Now – if you are unsure of whether you are under arrest – JUST ASK! If you are, then OBEY. If you are not under arrest, then politely decline to answer any questions that will incriminate you and ask to be on your way. But don’t leave or go anywhere until the officer says you can go. That’s resisting detention – which is a crime just like resisting arrest. (I know, I know – but hey, I didn’t say you have to like it).
Lastly, if you have a medical emergency or a non-obvious injury that compromises your ability to be comfortably handcuffed or enclosed in the back of a police cruiser, TELL THE OFFICER RIGHT AWAY – and KEEP YOUR HANDS WHERE HE CAN SEE THEM.
Remember, the bottom line is that the officer doesn’t care as much about your case or what happens in court as much as he does about going home safely to his family at the end of his shift.
So, on the street you need to take every measure you can to let your arresting officer know that it is not your intent to harm him.
Again, I am not saying confess. No one is saying that police always behave either, but the burden of compliance is on YOU.
So – don’t resist arrest. Save your legal battle for the ring. Justin and I will be in your corner.
Call us at 603-595-5525
By Shepherd and Osborne