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Regardless of whether a client is charged with a DUI or a Death Penalty case, a good criminal lawyer will go through the same process to analyze that case. If you or a loved one is facing criminal charges, it may help you to understand the process that competent criminal lawyers use to analyze criminal cases.
This page will help you understand that process. The process described below is not something that is taught in law schools and I’ve never seen it taught to lawyers in Continuing Legal Education, however after handling hundreds of criminal cases personally and discussing thousands of criminal cases with other lawyers I can tell you that all competent criminal lawyers analyze criminal cases in a manner similar to what is described below.
The answer to this question is almost always yes, but sometimes clients are arrested and charged for behavior that does not actually violate the law. A good criminal defense lawyer will always ask themselves this question.
I have represented multiple clients that were arrested and criminally charged for conduct that did not violate the statute. My most well known example is when I represented Sooner Tea Party founder, Al Gerhart. Mr. Gerhart was arrested and charged with Blackmail and Violation of the Oklahoma Computer Crimes Act because he sent sent an email to an Oklahoma State Senator regarding pending legislation. Mr. Gerhart’s email did not violate the statute because it was protected first amendment speech. (See Gerhart v State, 360 P.3d 1194 (Okla.Cr. 2015)
In another case I represented a client charged with violating Oklahoma’s Peeping Tom Statute for video tapping up the skirt of a woman in a department store. The statute required the person being video tapped to be in a location where they had a reasonable expectation of privacy. The prosecutor was arguing that the woman had a reasonable expectation of privacy up her skirt, while what the prosecutor was arguing was true, its not what the statute required. In that case the trial judge dismissed the charges against my client, the state appealed to the Oklahoma Court of Criminal Appeals and they affirmed the trial court’s decision.(Read the Motion that won the case.)
If a defendant is charged with a crime for behavior that does not violate the statute, his or her lawyer must raise that issue with the Court. Just because the issue is raised does not mean that the judge will agree with the argument and dismiss the case. For example in Mr. Gerhart’s case described above two separate judges denied motions arguing that Mr. Gerhart’s behavior was not violation of law. In Mr. Gerhart’s case we had to appeal the case to the Oklahoma Court of Criminal Appeals in order to win.
The answer to this first question will also effect the evaluation of whether or not the case can be won at a trial. If the charged behavior does not violate the statute, not only can that be argued to the judge in pre-trial motions it can also be argued at trial to the the jury.
These arguments could take many forms, they could be based upon an illegal search and seizure, they could be based upon an unlawfully obtained statement, they could be based upon the statute of limitations, applications for determination of competency or any argument that would end the government’s case. At this stage of the analysis it is important to keep in mind that we are not talking about arguments and motions that will weaken the state’s case, we are talking about a legal argument that would be fatal to the government’s case.
A Motion to Suppress based upon an illegal search and seizure of evidence is a common motion that would fall into this category, as long as the loss of the evidence is fatal to the government’s case. For example, in United States of America vs Morgan, Northern District of Oklahoma case no. 10-CR-194-JHP, I successfully argued that the deputy that obtained a search warrant for my client’s home lied on the application for a search warrant. In the Morgan case, the only evidence that the government had against my client was obtained through that search warrant. Once the judge granted the Motion to Suppress the government had no evidence to go forward and they had no choice but to dismiss the case.
These types of motions are most commonly filed in drug cases and other cases involving illegal possession of contraband. These types of motions could also be filed in cases in which the state relies upon the defendant’s confession or an identification of a defendant.
It is important to keep in mind that just because a lawyer can make an argument does not necessarily mean that a lawyer should make an argument. These types of motions should only be filed if there is a reasonable probability of success. And it must be understood that if this type of motion is filed and not granted that it can make plea negotiations more difficult if working out a favorable plea is a goal.
Additionally, just because there is a good legal argument to support a motion to suppress does not mean that you will be successful while arguing it. Many judges deny motions that they should grant. The decision of whether or not to file the motion to suppress may also be influenced by the jurisdiction the defendant is being prosecuted in.
Most judges are former prosecutors. Many judges take their responsibility as judges seriously, but many do not. It is very difficult to persuade a judge to rule on your motion when doing so means the judge must rule that law enforcement officers lied. If the case is high profile case or a more serious offense than it is even more difficult to get a judge to rule in your favor on a motion to suppress. It is easier to get a judge to suppress a joint of marijuana than and pound of marijuana. It is easier to get a judge to suppress a pound of drugs than 10 pounds of drugs. It is easier to win a motion to suppress if your client has no criminal history or minimal criminal history than if you client has a long criminal history. It is easier to win a motion to suppress on a misdemeanor than a murder.
In my experience you also stand a better chance of winning a legitimate motion to suppress in federal court than you do in state court. While a defendant has more rights in state court than they do in federal court, federal judges take those rights more seriously than state court judges.
I have been practicing criminal law for over 16 years. When I first started practicing law I thought that I needed to be more persuasive so I could convince the judges that many of these cops were lying. After a number of years I realized that the judges know that some of the officers are lying and I had to convince them to care about it. (A great book that explains why judges often deny motions to suppress that they should have granted is Letters to a Young Lawyer by Alan Dershowitz.)
Keep in mind that with the vast majority of cases the answer to the first two questions will be no. It is unusual for someone to be charged with a crime for behavior that does not violate the statute. It is not often that a defendant wins a motion that ends a criminal case against a defendant. However, just because it does not often occur does not mean that a criminal lawyer should not ask themselves these questions. A diligent criminal lawyer will analyze his client’s case thoroughly by answering these questions even while knowing that chances are not good that one of these first two scenarios will apply.
Unless the answer to one of the first two questions is yes, this is a question that must be answered in every criminal case. Even if a client wants to plead guilty to a case and informs his or her lawyer of that at the beginning of the case a lawyer should always answer this question. A lawyer has a duty to inform his client if the state may not be able to convict them at trial, even if a client wants to pled guilty, because having this knowledge may change the client’s mind. Before a client enters a plea and gives up his or her constitutional rights his or her lawyer should advise the client of all viable options, otherwise the client’s plea may not be a knowing and voluntary.
This is the toughest question to answer when analyzing a criminal case. I am of the opinion that the many criminal lawyers never answer this questions because they have little or no trial experience. If your lawyer is not a trial lawyer than your lawyer can not properly answer this question.
To properly answer this question a lawyer must have the jury trial experience to estimate the strength of the state’s case, to understand how the evidence will be presented in court, to know what can be brought to light during cross examination, to estimate the credibility of the state and potential defense witnesses and to have a good idea how the evidence will be interpreted by a jury.
A lawyer must also take into consideration whether the client is over charged and whether or not there is a chance of beating some or all of the charges. A lawyer must also consider whether there is a chance of being convicted of a lesser include offense or not and what is a likely sentence if the case is tried to a jury. In my opinion without jury trial experience this is not possible.
Often times the answer is clear, the government has the evidence to prove their case. If the state has a strong probability of proving their case and a reasonable plea agreement can be worked out than the accused should probably take the deal. This of course is the defendant’s choice and not the lawyers choice. All a lawyer can do is advise the defendant on what the lawyer believes is the best course of action, it is the defendant’s decision whether or not they wish to follow that advice.
“Winning at trial” does not have to mean that the defendant is found not guilty. It could mean that the defendant is convicted of a lessor offense or receives a sentence more favorable than the prosecution is offering. For example I once represented a client at trial charged with the first degree murder of his former fiancé. The state had a very strong case against my client. In Oklahoma first degree murder carries a minimal sentence of life. I tried everything I could to get the state to offer my client a plea on second degree murder and a sentence less than life. The state refused. We tried the case to a jury, we had no real chance of being found not guilty of all the charges we were just trying to beat the first degree murder charge so we could receive a sentence less than life in prison. We tried the case to a jury and after a week and a half of trial my client was acquitted of first degree murder, convicted of second degree murder and received a sentence of 25 years. My client was happy with the sentence and did not appeal.
If the answer is not clear, or the lawyer believes that there is a reasonable probability of success than the lawyer along with his client must make the tough decision of deciding whether or not to enter a plea or proceed to trial. In order to make this decision the client must evaluate the calculation of risk.
To properly evaluate the calculation of risk for a client a lawyer must take into account the chances of winning at trial and the risk the client faces from the criminal charges. At first glance one might think that the chances of winning at trial is the same as the risk the defendant faces from the criminal charges, however they are two different things.
For example, lets say that my client is charged with a misdemeanor DUI charge and the state has a weak case against my client. Lets say I estimate my client has a 70 to 80 percent chance of winning the case at trial; however, if my client loses and is convicted my client could be sentenced up to a year in county jail. If my client is sentenced to jail my client will lose their job, their car, their house and be unable to support their family.
While the chances of winning the case are good (70-80%) the consequences of losing are devastating for my client. Not only would my client suffer incarceration in jail, my client risk losing everything that they have worked for. Ultimately, it is my client’s decision, but most clients facing this scenario would not take the risk of going to trial despite the good chance of winning at trial.
However, the decision may not be the same if my client’s personal situation was different. Let’s say for example that my client was living here on a green card and the conviction would result in them being deported. If that was the case my client may decide that the risk was worth it.
To properly evaluate the calculation of risk, a lawyer must not only know the legal system well and be able to estimate the chances of receiving different outcomes, but a lawyer must know his client and their personal situation. It is the lawyer’s duty to present an evaluation of the case to the client and to discuss with the client the calculation of risk the client faces. Ultimately, it is up to the client to decide whether they want to proceed with trial or to plea the case.
Often times minimum sentences effect the calculation of risks. For example let’s say that my client faces a first degree murder charge and the state has a very strong case against my client and lets say my client has less than a 10% chance of winning the case at a trial. However, the minimum sentence my client will receive if convicted is a life sentence, which means he would be required to serve thirty-eight years and four months (38 &1/3) before becoming eligible for parole. If my client is in their fifties (50s), and the prosecutor is not willing to offer an acceptable plea, than they are almost certainly going to want to take the their chances at trial.
However, a client in their twenties (20s) they may make a different decision, especially if that client faced multiple charges that would likely run consecutive if they were convicted at trial, or if we were concerned the client may receive a sentence of life without the possibility of parole.
Clients may make decisions that the lawyer disagrees with. Clients may even make decisions that most people would consider to be dumb. That is the client’s right to do so. The client makes decisions based upon their own values, not the values of the lawyer. It is the lawyer’s job to analyze and advise the client, it is not the lawyer’s job to substitute their judgement for that of the client.
Mitigation means the reduction of the seriousness or severity of the sentence that a defendant faces. If a lawyer can not beat a criminal case through a motion or at a trial, or if it is decided that the calculation of risk makes a trial unwise, than a criminal lawyer’s major focus must become mitigation.
Keep in mind that sometimes a case will be tried to a jury as a mitigation strategy. (This was the strategy that was used in the case described above where my client received a 25 year sentence on second degree murder instead of a life sentence on first degree murder.)
However, mitigation is a consideration that must be kept in mind during all phases of analyzing a criminal case. For example, on a drug case, if a lawyer files a motion to suppress and fights to have the case dismissed, it may effect the lawyer’s ability to negotiate a favorable plea agreement for his client. Like all risks these are risk that must be explained to the client when deciding whether or not to take this course of action.
Plea negotiations are the most common form of mitigation criminal lawyers engage in. Through plea negotiations lawyers can often work out agreements that mitigate the punishment their clients will receive and limit the risk that their will face.
Mitigation can take many other forms as well, for example it could be a sentencing brief that explains a client’s limited mental capacity, personal factors of a defendant that increase the probability of a lenient sentence from the judge, trying the case with the goal of beating the charged offense and receiving a sentence on a lesser offense or trying the case for punishment.
The description given above is an overview of the process that a good criminal lawyer will go through in analyzing a criminal case, keep in mind this description is simply an overview of that process and is by no means exhaustive. I hope this analysis has assists you in understanding why good criminal lawyers give the advice that they give.
I try to respond to all inquires as quickly as possible. If you need immediate assistance you can call my office (918) 582-1313 or my cell phone (918) 230-9513. If you are in need of emergency assistance feel free to call my cell phone anytime either day or night.