Why criminal defense lawyers?

One of my favorite anonymous quotes about the criminal defense Bar - Protectors of Rights, Defenders of Individual Freedoms, and one of the last bulwarks against unbridled government power:

 

We, as criminal-defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job, our sworn duty, as criminal-defense lawyers, to protect our clients, from those people.

How to End Cheating in Sports

Lance Armstrong.  Melky Cabrera.  Alex Rodriguez.  Countless football players and Olympic athletes.  The list is long and growing.  Obviously lured by the riches that await, professional athletes increasingly risk "getting caught" taking performance enhancing drugs and the like - cheating - to gain an edge (at least according to the news).  For these and other alleged "frauds pretending to be heroes," getting caught means little more than an apology (A-Rod) or forced retirement (Manny Ramirez) after they've already taken millions - hundred of millions - in contract and endorsement money.

The business of professional sports - be it cycling, baseball, football, whatever - cannot be counted on to prevent or fix the problem; too much money is made.  And, too many fans seem not to care their guy cheats if their team wins:  A classic case of the fox guarding the chicken coop.

How to fix the problem?  State courts should recognize a private cause of action (for example, for any person who has purchased a ticket and attended a related sporting event) against offending athletes and their teams, based on fraud, misrepresentation, breach of contract and any other legal theory that fits the facts.  Recoverable damages would include those already available for other causes of action based on fraud etc., namely economic damages (like out of pocket ticket and travel costs), non-economic damages like emotional distress, punitive damages, unjust profits, and any other damages caused by the wrongdoing.

Such causes of action already exist against professionals, businesses and other persons who through deceit, dishonesty and misrepresentation defraud others, so why not professional athletes and the teams and business that enable them?  If you pay (outrageous) ticket prices to take the family to a ball game to see athletes compete, and one or more of those athletes cheats by doping and perhaps impacting the game's outcome, shouldn't you be able to sue that person for related damages?   Why are they protected?

The same statute of limitations (time within which a suit must be brought) would apply, typically up to two years after the fraud is discovered.  That, combined with the possibility that the athlete and his team may have to cough up a ton of dough from their own pockets, most likely greatly would deter such cheating.

It is possible that some courts already would recognize such a legal right given the right set of circumstances.  But why have it be ambiguous?  The clearer the cause of action, the more powerful its deterrence.

Anyway, just a thought....  Now back to the football game.

TSA Searches Constitutionally Suspect

Anyone unfortunate enough to have traveled by air over the last few years has experienced the intrusive and invasive pat-downs, screens, questioning, waiting and other searching by TSA employees. 

Quickly, to all you jumping up and down arguing these searches are necessary to protect us either don't know or forgot that everyone of the 9-11 hijackers was pulled by equally intrusive screeners then and ultimately allowed to board.  Such security measures simply do not prevent creative, determined and especially suicidal evil doers.

The 4th Amendment prohibits unreasonable searches.  How reasonable can a search be if it fails to further the goal behind the search?  When then does such a search become unreasonable - when perhaps we are all forced to wear hospital gowns and slippers in order to shuffle onto an airplane?

Have not the terrorists won if our liberties give way to pat-downs approaching gropings?  Moreover, is not the false sense of security instilled by these bogus searches counterproductive to the vigilance and common-sense needed to deter and prevent attacks?

It is time to get real about TSA's efforts.  After all, since when do government operated security screenings supplant common sense?

Thought for the day...

Most of the problems we face today are there because the people who work for a living are outnumbered by those who vote for a living.

Casey Anthony case proves the system works.

Like the infamous OJ criminal case, Casey Anthony's acquittal has disappointed many and led to calls for changes in the justice system.  These people miss the point.

Disappointment is when reality exceeds expectations.  Disappointment can lead to frustration, which can lead to rash decisions.  Anyone who expected a conviction expected too much of our system.  It is not geared towards readily convicting the accused. 

Following centuries of experience, Western criminal justice systems are designed to limit the power of government prosecutors from obtaining automatic convictions, primarily by allowing for jury trials.  Also, the prospect of having to convince a jury deters over-zealous police and prosecutors from bringing and pursuing potentially bogus yet damaging criminal charges.  That prospect also leads to most cases being resolved via plea agreements, without which the over-crowded criminal justice system would cease to function.

Casey Anthony elected to have a jury trial, a constitutional right at least.  The jury heard the case and made its decision.  Appellate courts are built to make sure the rules were followed, not to second guess acquittals.  Experienced criminal defense lawyers know that juries are impossible to predict.  We've all won cases we "should have" lost, and lost cases we "should have" won.

When people know the outcome of a trial ahead of time, it is called a show trial, and many countries still put on show trials.  Rather than lament the lack of a conviction in Ms. Anthony's case, we should appreciate the fact that our time-tested justice system worked exactly the way it was designed.

What to do if stopped for DUI.

     Based on over 25 years defending people accused of all sorts of crimes, here are my top 5 suggestions if you are stopped for DUI (or any similar offense):

1.  Be polite but consent to nothing. 

2.  Give your name, required paperwork, address and the like if asked, but politely decline to answer any other questions or do anything "voluntary" unless the officer says you must.

3.  Politely decline any so-called roadside tests (including the portable breath test sometimes given during the roadsides) then ask if you are free to leave and if so, be on your way. 

4.  If you are arrested and requested to submit to a breath or blood test, you could lose your driving privileges for a while if you "refuse."  That decision is up to you, knowing otherwise that lack of a test makes it much harder for the prosecution later to get a conviction for DUI.  If you decide to submit, choose the breath test (though it is easier for the prosecution to prove compared to the blood test, it is easier for the defense to attack).

5.  Do not admit to drinking, to driving, or answer any voluntary questions about where you have been, what time etc.  If you try to explain, you are only needlessly giving away information.  Silence on these issues is your right, and silence is golden.

     Not all lawyers would agree with the above and of course every situation is different.  However, often when you read about a judge or police officer or prosecutor arrested for DUI while not on duty, these are the very suggestions they follow (although they seemingly almost always refuse to submit to a test).  In my experience, not following the suggestions above makes it much harder to defend against a DUI charge that may be bogus to begin with.

Domestic violence in Colorado.

“Domestic violence,” or DV, is not actually a separate crime in Colorado.  Rather, it is a sentence enchancer: it makes the underlying offense more serious.  Assault (causing bodily injury), harassment (e.g. touching a person, threatening him, repeated telephone calling), false imprisonment (restricting one’s freedom of movement), criminal mischief (damaging another’s property) and criminal trespass (being or remaining where you have no right to be) seem to be the usual acts underlying DV cases. 

In sum, if you are charged with committing bad acts against someone you have had or are having an intimate relationship with, it could be domestic violence as very broadly defined by Colorado law.  If convicted - which includes a plea agreement amounting to an admission of guilt - your sentence could be that provided for the underlying crime(s) (jail, probation, therapy, fines, costs, etc.) plus the sentence provided for domestic violence crimes (usually lengthy domestic violence “treatment,” possible loss of your right to possess weapons, and other restrictions and punishments).

For most DV suspects, the biggest issues they face - at least early on- are the no contact and/or restraining orders, together referred to as protection orders, which begin to go into effect once charges are formalized. 

“Restraining orders” automatically go into effect once you are charged, preventing you from harassing, threatening, intimidating, etc. witnesses and the alleged victim(s).  “No contact orders” must be imposed by a judge, and they routinely are in DV cases, preventing you from contacting the alleged victim.  No contact means just that: no telephone calls, no emails, no letters, no visits, no communication.  Generally, having someone else contact the alleged victim is prohibited.  Accepting contact from the alleged victim is prohibited, even if he or she wants contact.

Violation of a protection order is a separate crime.  It also can be a bond violation resulting in jail if a bond securing your release from jail is in effect at the time of violation.

Can no contact orders be lifted (canceled) or modified (usually to allow telephone contact only)?  Yes, but be patient.  First, the alleged victim or victims usually have to request it (repeatedly) of the district attorney’s office.  That office then may prepare a written motion to the judge conveying the request.  The DA’s office may be for or against modification or lifting of the order.  In effect, the no contact order amounts to a great deal of leverage over the defendant to take a plea (well over 90% of criminal cases in Colorado plea “bargain” without trial) and resolve the case quickly just to try to get the order lifted.  Meanwhile no contact orders remain in place, and are strictly enforced, unless and until lifted or modified by a judge, which can take weeks or months if ever (in some plea agreements, the DA’s office will insist on a permanent no contact order).

While the protection orders are in place, you must defend against the charges.  Domestic violence charges can be misdemeanor or felony level.  Most are misdemeanors prosecuted in county court (felony cases end up in district court and involve different procedures and stiffer penalties). 

The DV prosecution process is long and deliberative.  For the accused it is frustrating, emotionally trying, and devastating to the family structure and finances (especially if a no contact order is in place requiring couples to live apart).  Sometimes the cure is worse than the disease, and some families and relationships never recover.  Of course the process can be equally hard on the alleged victim or victims, if not more so.

If you believe you are innocent, don’t give up.  Just because you were arrested doesn’t mean a crime was committed, especially in DV cases, where many well-intentioned peace officers believe they are required to make an arrest regardless of circumstances.  Many times self-defense and other defenses are available.  Let the equally deliberative defense process work its way, and understand that defending yourself is your right (especially before you consider a plea).