Tuesday, April 5, 2011

What if you are falsely accused? Part II: Choosing legal help

In the first part of this series, I pointed out that if the authorities falsely accuse you of a sex-related crime (or anything else), you should NEVER talk to the police. The police are not interested in finding out what happened; they are interested in finding a way to get you thrown into prison, whether or not you did anything wrong.

This post gives advice on choosing an attorney, which other than deciding not to talk to the police is the most important decision you will make. Many an innocent person has been railroaded into prison because of bad legal representation, and people who have been acquitted of these kinds of charges will tell you that their choice of attorney really mattered.

The vast majority of people who are falsely accused never have been in trouble with the law before and, thus, are not exactly on a first-name basis with criminal defense attorneys. They often take the first name out of the phone book, or get the name of an attorney from someone else, or a website in which the lawyer promises to be the Second Coming of F. Lee Bailey or Johnny Cochran.

I have been personally involved in four of these kinds of cases and each time the defendant has had to fire his or her original counsel, which means thousands of dollars thrown down the drain. I have seen attorneys attempt to sell out their clients, refuse to look at exculpatory material, and tell their clients to do nothing and let them do all the work. (And then they proceed to do the minimum amount of work until the defendant is in a huge hole.)

Believe me, it is MUCH better to have good counsel at the start, as opposed to having to fire the attorney mid-way through the case and then begin afresh with a new lawyer. So, how do you do it, and, more important, how do you afford it?

The first thing to remember is that your attorney needs to be someone who has at least some experience with these kinds of cases. As Tonya Craft has told me more than once, these cases are very different than any other kind of criminal charge. The public is much more likely to believe the charges, and the courts have been willing to accept "evidence" that is not evidence at all. Furthermore, as Tonya saw, more often than not, the judge may very well act like a member of the prosecution team. (I will say that "judge" brian outhouse's conduct during the trial was on the extreme side, but a lot of people who have been wrongfully convicted in these kinds of cases had trials in which the judges were hostile to them throughout the proceedings.)

The second thing is that the attorney you choose needs to be amenable to the belief that you are innocent of the charges. Criminal defense attorneys usually represent guilty people, and like everyone else, they become jaded over time dealing with liars, crooks, thieves, rapists, and murderers. Many times, they don't like their clients, would not want to meet them in a dark alley, and believe that they are guilty as sin, but still do their professional duty and represent them as they should.

It is very rare that a criminal defense attorney has an innocent client and all-too-often, that lawyer fails to recognize his or her client's innocence and immediately tries to find a way to plead out the accused. If you are innocent and want to fight the charges, and your attorney is suggesting that you plead out, fire that attorney immediately. Don't wait for him or her to have a change of heart. An attorney who will want to plead you out is an attorney who does not care about you, your innocence, or doing what is right.

No, if you want to prevail, you have to get a lawyer who believes in you and your innocence. You need to get a lawyer who will take a hard look at exculpatory evidence, and who will be open to receiving material from you. For example, Tonya had very good attorneys, but she also played a major role in her defense, poring over material, putting together timelines, and unearthing exculpatory material. You have to be willing to do the same, and if your attorney wants you to sit back and be passive, be active instead and say, "You're fired."

I have seen one case in which the attorney lied to his client and read NO material on the case before the bond hearing and then had no argument at all, which meant the client remained in jail. There is another case in which the attorney clearly did not know anything about how child molestation cases worked and never even raised a question about some very untenable claims the prosecution was making. And on and on.

Believe me, it does not take much for a lawyer to sell out his or her client, pocket the money, while you spend the rest of your life in prison for something that never happened. This sad event happens more time than you ever can imagine, and the attorney will not shed a tear as you are dragged away to hell on earth.

So, how do you choose an attorney? The first thing you have to do is to find out whether or not he or she is familiar with cases such as yours involving false accusation. If so, then you need to find out if the counsel is willing to fight for you. Keep in mind that you are employing the attorney, not the other way around.

Second, see if there is a personal connect. Can you work with this person? Does this attorney have references that you can call? Has he or she been able to get other falsely-accused people acquitted?

Third, do NOT hire someone who is part of the "courthouse crowd," especially of the courthouse where you will be tried. Tonya's first attorney, a local lawyer in Catoosa County, immediately tried to get her to plead out. There was no way that he was going to be willing to antagonize Chris Arnt, and he was all-too-happy to sell Tonya down the river.

A local member of the "good ole boy" crowd will not fight for you, for that means taking on the local "justice" apparatus and doing battle with his drinking and lunch buddies. That will not work.

There is a hazard in hiring someone from out-of-town, and that is the fact that the judge and others might be hostile to him or her simply because of the out-of-town label. During Tonya's trial, "judge" brian outhouse was openly hostile to her counsel, and both Len "The Man" Gregor and Chris "Facebook-Cruisemaster" Arnt many times during the proceedings reminded jurors that they counsel was not local, which I guess they thought would inflame the jurors to vote "guilty." (It turns out that the jurors were not the in-bred hicks that Arnt, Gregor, and outhouse thought they would be. The only in-bred hicks in the building were those employed by Catoosa County and the State of Georgia.)

Then there is the cost. You have to remember this simple fact when you are falsely accused: your life as you have known it is over. Over. Forget your career, your job, your friends, your church, and maybe even your family. People who shook your hand now will turn away; you are likely to be fired, or at least suspended from your job, and even if you are acquitted, a sizable group of people will claim that you "got off on a technicality" and really are a child molester or a rapist. (In modern America, unfortunately, "innocence" has become nothing more than a "legal technicality.")

Most of us don't have $50-$60 thousand of spare change lying around, so that is going to mean you will have to be created in your spending. One of the reasons that prosecutors love false accusation cases is that the defendants generally are not wealthy, yet are forced to pay for the legal counsel while the taxpayers (including you) finance the prosecution. Just this financial disconnect alone is a huge reason that thousands of people are wrongfully-convicted in American courts today.

This might mean a second mortgage, selling your house and anything else you own, cashing in on your pension, or whatever it takes. If you cannot afford an attorney, that means that you will be assigned a public defender, who is NOT going to be competent if you go to trial. Furthermore, the public defender will be a product of the "courthouse crowd," which means it is likely he or she will ignore exculpatory information and offer you up as a sacrifice to the prosecutors.

I have a friend who was convicted in federal court in what truly was a smarmy action by the feds. First, the feds seized her property, depriving her of being able to pay a lawyer, with the government assigning her counsel that demanded she plead out. My friend, who believed she was innocent, insisted on going to trial, so her court-appointed lawyers undermined her, refused to present exculpatory evidence during the trial, and let a jerk of a prosecutor win a conviction.

[Note]: Someone has commented on the board that where he or she works, the public defenders are more aggressive in their cases than are the regularly-paid attorneys, and that my earlier statement then negates the truthfulness everything I ever have posted. First, it is not my point to defame PDs. Many of them are overworked, underpaid, and face serious odds.

Second, I have listed the experiences I have witnessed, which means that I have not seen personally a situation in which public defenders are effective in dealing with the prosecution. The problem is NOT that public defenders are callous or craven, per se, but rather that the deck is stacked against them. They often have to dig into their own funds, as the payment they receive from the state is woeful, and they face constraints that prosecutors don't face.

Third, if they really go after the prosecution's case aggressively, they are liable to be victims of prosecutorial retaliation. That is the cold, hard reality of the world of the public defender, and I think where I made my error was in making it seem as though the PD always INTENDS to sell out the client.

The PD has a difficult job. In cases where I have been involved, at least on the periphery, the PD has wanted to plead out the defendant. One case especially bothered me, as the attorneys had in their possession a document that clearly contradicted what one of the prosecution's star witnesses was claiming. My friend, an attorney herself, showed that document to her public defenders, and they blew it off. During the trial, they literally presented NOTHING to contradict the prosecution's case, even though they had available material. Not surprisingly, she was convicted.

True, one case does not determine a trend. It is my contention, however, that in the kinds of cases we see here, unless a PD has experience with wrongful-accusation charges, it is better to have counsel that does have experience and that is likely to hold you really are innocent.

Again, let me emphasize that I am not dissing PDs or their work. They labor against constraints that are terribly unfair and that make theirs an uphill battle. That is the reality of their situation.[End Note]

You want to get a lawyer who believes you are innocent and understands the nature of these kinds of cases. Anything less than that will land you in prison for the rest of your life.

23 comments:

Walter Abbott said...

Bill,

This is a very impressive how-to piece on what to do when the unthinkable happens.

Good work!!

Anonymous said...

Your comments on public defenders are rude and (in my circuit) incorrect. The PDs here try and win more cases than all the private counsel combined. Those kind of comments make me doubt the reliability of the rest of your posts.

KC Sprayberry said...

Anon 8:14 - your area must be a rarity. Most public defenders want to make a lateral move to the prosecutor's office. Yes, a lateral move, since the public defender's are financed and controlled by the prosecutor. That's truth. As for PDs forcing pleas, that's another truth. They have to deal with a boss who wants them to 'clear the decks', a boss who's only concern is how many convictions they can get in a day, week, month, and year. Check out the heirarchy of your local PD's office. I bet you'll find it's a division of the prosecutor. Then ask yourself if that's the kind of person you want defending you against the unthinkable. Doing the right thing, living a life by following the rules no longer applies. With the Supreme Court believing prosecutors and cops can lie because they deal with criminals, a truth-telling, ordinary citizen doesn't have a chance.

William L. Anderson said...

I have added material to the post in order to deal with the comments of the 8:14 commenter. It is not my position to say all PDs are bad just as I don't believe all cops and prosecutors are bad.

The problem is the institutional setting and the sets of incentives that have been created and are almost impossible to dislodge.

Anonymous said...

Every case is different. Every courthouse is different. And every attorney is different. I've seen some horrible public defenders and some great ones, same goes for the private bar.
It depends on what you want to do with your case. If you are guilty as hell and plan to plea out, a local attorney or public defender will be able to get you the best deal.

liberranter said...

Bill, you hit all of the nails on the head with this one!

Thank you, in particular, for reemphasizing the fact that all too often judges serve as auxiliary prosecutors. Several years ago my wife was arrested on a spurious DUI charge in Loudoun County, Virginia. We were determined that she was NOT going to plead out at a district court trial and went for a circuit court jury trial instead. From the moment we entered the courtroom for voire-dire for the jury trial, it was apparent that the judge had it out for my wife (and probably had it out for every other defendant who ever appeared before him). Fortunately for us, we had hired a first-rate defense attorney. Either the trial judge knew the man by reputation or simply didn't like the fact that my wife's defense team included co-counsel, because the first thing this scumbag judge did was refuse to allow co-counsel to sit at the defense team table because the man did not, at the time, have a Virginia law license (he was, however, licensed in twelve other states). In the end, however, chief counsel was able to tear the state's case against my wife to shreds, with the judge becoming visibly infuriated, even going so far as to urge the prosecutor to “raise more objections, damn you!” (I kid you not – those were at one point his exact words!) In the end, the jury took less than fifteen minutes to acquit my wife. On reflection, I believe that what also enraged this judge was the idea that someone would take a DUI case to a jury trial, a case that the State would rather strong-arm people into pleading in order to allow the State to more easily convict. While my wife's case was certainly not anything of the order of magnitude of a molestation case, I think it serves as just one routine example to demonstrate the fact that judges are anything but impartial arbiters of criminal justice. Given that both judge and prosecutor are agents of the Punitive State, that is to be expected.

Your point on public defenders is well-taken and the reasons you cite for their ineffectiveness are also spot-on. Again, it's not that most are necessarily incompetent, but that they face overwhelming odds when up against the state. I would love to see legislation passed into law in each state mandating that PD offices be given funding and resources equal to that of DA 's offices. Of course we stand a better chance of seeing Ron Paul elected president, the gold standard restored, and the entire Federal Reserve board of governors thrown into prison than of that ever happening. To do so would inflict serious injury upon the omnipotence of the State.

Finally, I would add to your recommendations for how to choose the proper defense attorney the step of researching old local news articles or court briefs to identify those attorneys who were successful in obtaining acquittals for their clients accused of molestation or rape. It would be advisable to do this now, even if you're not even remotely in danger of being falsely accused. Better forearmed than forewarned.

robwbright said...

Bill:

Long time reader. . . A lot of good stuff up there. I'd note that the truly innocent client is the hardest one to represent.

As an attorney who does some criminal work, I do have a couple comments:

You said: "If you are innocent and want to fight the charges, and your attorney is suggesting that you plead out, fire that attorney immediately"

In many/most cases, I would agree with you. That said, there are instances where it makes more sense to plead.

For example, I currently have a client indicted for 3 felony drug charges. I believe the client is innocent (or at minimum, that the state will have significant difficulty proving their case) and the recording of the alleged drug buy has no evidence that the client did anything like what they were indicted for.

That said, if the prosecutor offers a misdemeanor plea, I will recommend that the client take it. This is a very anti-drug area with a very anti-drug judge. If they offer a felony plea with no jail time and expungement of the felony if the client completes a treatment programs, I'd likely recommend that as well.

It's a question of risk - if the client goes to trial and is convicted, there is a significant chance that the client will do 5+ years in prison. If she pleads to a misdemeanor, the client will likely do no time. I note that the client has a small child.

Thus, I have no problem recommending that the client take a REASONABLE plea offer.

I imagine you've considered these sorts of issues before, but thought I'd throw it out there.

As to PDs, in an adjacent county to me, three of them have been disbarred in a 2 year period (that's 3 out of 5 - and there are only about 12 practicing attorneys in that small county).

Not like that everywhere, but certainly not good in that county.

Rob Bright

Anonymous said...

Way to go Mr Anderson,You better check out lawyer's, First mistake we made, Never been in trouble of any kind, But a 15yr. old accused my son. Our lawyer told us he had many case's like ours, come to find out he had not. He told us not to worry he had it under control, He did not. He was a Tenn. Lawyer, He did not know the Georgia law, But he said he did, We have been out around $80.000 and my son is still in prison.

The prosecutor and the judges stick together,Do not talk to the Police and check and double check out your lawyer.

WVPD said...

Thanks for the clarifications about PD's. As a former Public Defender from an office that was pretty aggressive about trying cases I have found some of your comments in the past hard to take. I would also caution you in this statement, "If you are innocent and want to fight the charges, and your attorney is suggesting that you plead out, fire that attorney immediately." As an attorney I have an ethical duty to take all plea offers to the client. So I think better phrasing might be if your attorney is trying to strong-arm you to plead out, b/c again if you are being represented by an ethical attorney they should be communicating with you AND telling you of all plea offers from the State both the good and the bad.

William L. Anderson said...

I believe that a plea deal is going to depend upon what the prosecutor offers. Often, they will offer an innocent person accused of child molestation a short time in jail or something like that.

However, here is the kicker: more often than not, the prosecutor will demand that the plea include the accused carry the label "sex offender" for the rest of his or her life. As you know, the USA has the most draconian sex offender laws in the world, and they are so strict and harsh that in some cities, sex offenders have had to sleep under bridges, as the law has so many restrictions that just to be within 1,000 feet of about anything is a felony and returns them to jail if they violate the rules.

I should have made that clear. This column does not deal with the garden-variety offenses, but rather those offenses that carry the "sex offender" label. If you are innocent, and your attorney offers to plead you to something in which you will be a designated sex offender, then you need to say "no," and if the attorney continues to insist that is what you do, then you get another lawyer.

Asha said...

Mr. Anderson, that is what we did, fired the first attorney, because the attorney insisted that my son take the plea and said that he would be charged as a "flasher" but not mentioning that he would be on the sex offender registry. When we began the process of seeing the court psychologist, she informed us that the charges were more serious than what the attorney was claiming.

Kerwyn said...

I believe there are many hard working pd's out there. I know they all operate under constraints that would make the rest of us blanch in horror. I also know there are PD's who cruise just as in any profession.

Plea deals must be evaluated on each instance. I don't believe that all plea deals are bad. There are times that the evidence to support innocence just is not there even if the client is innocent. Then it becomes a case of what is the least amount of damage. Does this suck? Absolutely, but that is our Justice System. Sometimes a little time is better than years in prison.

William L. Anderson said...

I probably made the error of thinking that what happened to my friend in the federal case is typical of Public Defenders. It is clear from the trial transcript and reports that the attorneys were working against her at every step.

They did not voice objections (in fact, the judge felt obligated to object to something when the defense was silent), and they blew off important documents and evidence that would have been a game-changer. It was clear that they were doing everything possible to appease the prosecution and offer up their client for sacrifice.

Since most plea bargains in sexual assault/molestation cases involve the defendant having to register as a sex offender, an innocent person pleading out is pretty much the same as agreeing to a life sentence, given the draconian nature of U.S. sex laws. I obviously am not against ALL plea bargains, and apologize if my words conveyed that error.

I will say that in Tonya's case, the local attorney she first retained IMMEDIATELY assumed she was guilty and set about to try to get her to plead to prison time, being a registered sex offender, and losing her children. In other words, he wasn't interested in whether or not she actually committed any of these crimes. He was just acting in a Pavlovian way in which he assumed guilt and wanted to plead out the defendant.

Oh, she got rid of him quickly. Good choice.

liberranter said...

It was clear that [the PDs] were doing everything possible to appease the prosecution and offer up their client for sacrifice.

That type of behavior should constitute grounds for immediate disbarment.

William L. Anderson said...

I wish, Liberranter. Most likely, the North Carolina State Bar would give them a medal for meritorious defense.

Carola said...

I had asked the attorney I hired if he had done these kinds of cases before. He lied straight to my face claiming he had done several.
Had I done research I would have found that he hadn't and that in fact 95% of his cases are pleas.
Although I had told him in the initial interview that a plea was not a option, the first thing he did was to try and plea the case.


The other mistake I made was that I fell for his flat rate offer without thinking it fully through. If you pay a flat rate the attorney's incentive is to get this case over with as soon as possible to keep it profitable for him/her. Whereas it is tempting because you know how much you pay it ends up being a pandora's box.

liberranter said...

Carola, the type of attorney you describe is, sadly, typical of most of the sleazy shysters who advertise themselves as "criminal defense attorneys." Precious few of them are even remotely qualified to defend anybody in a court of law (I'm reminded here of the line from the classic James Cagney movie White Heat in which a convict, being visited in prison by his clearly incompetent "defense" attorney, tells the man "Jerry, you couldn't get me out of here even if I was PARDONED!"). In fact, a horrifyingly large number of them, according to the attorney who successfully defended my wife, are former prosecutors who either couldn't cut it in the DA's office {!!} and were invited to leave or who just decided to strike out on their own and earn some easy money that required minimal effort (Bill's "courthouse crowd" description fully applies here). You're also correct about the "flat rate" fees they charge. These clowns would rather face disbarment then to actually have to earn their pay (which, again, few of them are capable of doing) and make it their goal to rake in as much money as possible while doing the barest minimum actual work on their clients' behalf.

It would be REALLY nice to see some sort of consumer database web site set up (something with a name like www.shysterbusters.com would be lovely), a sort of "Angie's List" for the legal profession in which attorneys, good and bad, are rated by customers. Of course the ABA would scream bloody murder at the very idea of any such thing and would pull out all stops to quash it.

Again, in the final analysis, word of mouth or self-directed research through media records of successful defense cases are the two best ways to find the right (re: most dedicated and qualified) defense attorneys. Finally, never, EVER pick an attorney out of a phone book or based on a TV advertisement!

Anonymous said...

If you take an ALWAYS approach, someone who has seen a lot of criminal trials will decide you aren't to be taken seriously.

Anonymous said...

Dr. Anderson, I knew exactly what you were saying. I don't believe you need to apologize. Just like any profession, there are good and bad. I have had many friends advise to never use a public defender and some have "served their time" as pds. Their reasoning is the same as yours. Their money is coming from the same place the opposing side's is. They are very limited on funds, so they can't fund a lot of the experts or testing which needs to be done. Most are usually trying to keep their own practices afloat or starting up their own. One thing that is painfully clear, unfortunately, a great deal of them take the job because they weren't successful. It's a paying "gig" and all they have to do is the minimum. This is not against all pds by any means, but it does encompass a majority.

Other advice given on this subject, if you must utilize a pd, try to get a young, hungry one. They are usually just starting out & trying to make a name for themselves. I do know one who is older & who has been a pd for 30 years because she always wanted to help people, but those situations are rare. Because of costs for continuing education & fees associated with being an atty, most do not want the job as a livlihood.

I am not lumping all into a category, simply stating advice from fellow lawyers.

William L. Anderson said...

Good point. A true defense lawyer always wants to have that "Perry Mason moment," and the younger ones often are hungrier than the guys who have been beaten down by the system.

Jerri Lynn Ward said...

I always think of justice from the Biblical perspective. Plea bargains are anything but biblical. A confession is not sufficient for conviction under biblical standards of evidence.

I know that people think plea bargains are a great way to reduce risk and to increase efficiency. I think that they are a way to increase wrongful convictions and to give the government a pass on its burden. Moreover, they require innocent people who plead to break the 9th commandment. We should be very frighted about institutionalizing such a practice in our courts. Frighted of God's judgment, I mean.

Just think, if plea bargains were not allowed, would we really have more trials? Would not prosecutors have to be more judicious about the cases they file and more mindful of whether they truly have sufficient evidence?

Now they can just slap on some charges and make threats and then play a rigged lottery for a conviction based on a plea.

Moreover, pleas have reduced the influence of the jury. Juries are supposed to be checks and balances upon the government. Plea bargains are one more method for undermining true self-governance as embodied in the jury system.

Charla Mcguyer said...

There are times when a wrongfully accused is charged with the crime and is claimed to have been blackmailed. These are times when they are most vulnerable, and the easy targets usually become the "bait" or fall guy of the real perpetrators. Money problems or death threats are often the motives for being framed. A good lawyer who can understand the troubled client's financial constraints is what is needed most in this case.

Evins5 said...

Where is part III? My husband is currently going through this! We are in desperate need of help!