June 24, 2020
Sometimes I am asked, “How can you stand to represent criminals?” There are three parts to my answer. First, not everyone accused of a crime by the state has committed a crime. Second, even someone who has committed a crime deserves fair treatment by facing only the charges that fit the action they actually took. Finally, in a broad sense, a criminal defense attorney is part of a judicial system which, although only an imperfect human system, constantly strives to make police work better.
I am just one attorney working in a small city but I have my own handful of instances where the police have simply gotten it wrong and forced clients to seek a defense attorney to prove their innocence.
Early in my career working under the guidance of an experienced criminal defense attorney we had a client accused of phoning in a bomb threat. A bomb threat was phoned in to a grocery store. The police went to the store to investigate and eventually arrested our client for calling in the threat. Prior to trial, I spoke to the witness and got more precise details about the phone call and the store's phone system. It turned out that the witness worked in the Customer Service booth of the store. A call came into the store so the witness answered the call with the phone near the counter. The person on the line called often to speak to a friend in the butcher shop. The witness transferred the call.
Another call comes into the store and she answered it on the phone near the door. The caller made a bomb threat and hung up. When the police came she began her story by answering the phone call with a bomb threat. The investigator picked up the phone and dialed 69. On the other line was the man who called daily to speak to his friend at the butcher shop. The investigator was using the phone near the counter and never touched the phone near the door. The investigator didn’t learn the importance of which phone he dialed 69 with until the trial when the judge dismisses the case.
After starting my own firm one of my first cases was a gentleman accused of Criminal Threatening. The police took a complaint from the gentleman’s adult son who claimed the father pointed a shotgun at the son and said something to the effect of “you are going to get this.” At that time the first step in the Courts was a probable cause hearing. I went to the hearing armed with the testimony of the son’s mother who said the son was unstable, the record of the son in getting into a bar fight in which he hit someone with a pool stick, and the letter the son wrote to his mother which showed his irrational state of mind. The judge threw the case out and that was the end of it because the state lacked a credible witness.
Between my first two-year term as County Attorney and my last four years, I spent two years as a defense attorney. At that time I had a client-serving as club treasurer accused of stealing by her club’s president. The president called the police in her town and they called the police of the treasurer’s town. The police showed up at my client’s door and my client wisely said nothing to them.
Her innocence as not something she could explain in a conversation with the investigator.
I collected all the available paperwork that had anything to do with their club. The story needed time and attention to be told truthfully and it proved (although it was not our burden to prove anything) the charges against my client were false and baseless.
The story I uncovered is that in the late 1990s several people participated in two clubs dedicated to putting on cat breeder shows. Meaning they conducted what appeared to be beauty pageants featuring cats. These shows were conducted in hotel ballrooms. Participants were charged a fee, tickets were sold at the door, items were sold, and advertisers bought space in the event printed program. Expenses included prizes, cleaning materials, printing, compensation for judges (fees, hotel rooms, and airline tickets), and rental of the hotel space.
Somehow my client’s accuser managed to push everyone but my client out of two separate clubs so that the two of them were president and treasurer of two separate organizations in the early 2000s. They took over clubs with a healthy bank account about $17,000 and the money spend on each event was recouped by sales from that event so another event could be conducted in the future. That lasted for a few years until the downturn in the economy in 2008. At that point, there were fewer advertisers in the programs, fewer entrants in the shows, and (although there were no records) probably less ticket-buying customers. By the time 2012 rolled around, there was no more money and the president blamed it on my client.
I deposed the president who accused my client. I asked the president pointed questions to back up her claims. We (myself and the prosecutors) learned that the club changed the amounts they reimbursed the president without any recorded reason. In fact, they had no meeting minutes for the ten years they controlled the clubs. It was impossible to say why anything was spent. There was no record for all of the things for which the club had reimbursed the president or treasurer. Without records of any kind, it was impossible to show anything was authorized. Likewise, it was impossible to show that my client had taken money for unauthorized expenses.
Recently a client came to me because he was stopped leaving a Walmart. The store security compared the sales receipt my client had just received with the items my client was carrying out the door. The sting of lights in my client’s backpack was not listed on the receipt so Walmart Security called the police to arrest my client for stealing the sting of lights. The security guard went back to the security videotapes and found footage of my client putting the lights in the backpack. Store security must have been in a rush because they seemed not to notice that, moments before putting the lights into the backpack, my client removed them to look at them.
My client, with his friend, arrived at the Walmart with the lights in the backpack. The lights had been purchased weeks before and my client brought them in order to purchase the same style.
I have also had clients who admit that they have done something they should not have done. However, the police charge the defendant incorrectly and I work to have the charge changed or reduced.
For example, a client who intended to quickly and humanely put an end to a sick old animal’s life went about it entirely wrong. The details are too gruesome to recount here. My remorseful client made a statement to police prior to receiving my advice not to give a statement. The difference between felony animal cruelty and misdemeanor animal cruelty is the intention to cause the animal to suffer. I pointed out that they would be unable to prove the defendant intended to cause suffering so the prosecutor accepted a plea of a misdemeanor and my client avoided a felony conviction.
Another client changed the price tags on a few items which she readily admitted to me on her first visit. However, the difference between a felony and a misdemeanor for theft is based on the dollar amount. Also, the client was typical of a person that is unlikely to re-offend so a deal was struck to reduce the charge to a misdemeanor without any punishment beyond the embarrassment the client experiences.
It is the job of the criminal defense attorneys to point out instances when the police have gone too far with their power so that in the future they regard innocent people’s constitutional rights during police activity.
In every case, defense attorneys look for instances where the police have failed to follow the proper procedure. For example, if the perpetrator is unknown to the witness and the police follow their leads to a suspect then they want to get the witness to identify the perpetrator. They should present the witness with at least six faces and see if the witness can pick the face out of the lineup. The line up can be physical in person as we often see on television or it can be a photo line up of six pictures. If the police fail to do this, then the defense has a good argument that the witness identification is unreliable.
An experienced criminal practitioner is a benefit to any defendant because facts gained from a violation of the constitution can be excluded from the case as what we call “fruit of a poisonous tree.” Police have to make sure that they are not collecting such fruit because if their case is made up of facts that will be unused in court they have no case at all. This is the job that defense attorneys have: to essentially teach police what they can and cannot do in investigating a case.
For these reasons I enjoy and am proud to be a defense attorney working against the police every bit as much as I enjoyed and was proud to be a prosecutor working with the police. Either way, I considered my work to be helping in improving the way police do their work.