CHALLENGE EVERYTHING

In the television show House, House- the brilliant but cantankerous diagnostician doctor continually tells the doctors he is training "everyone lies".

And so they do. 

The challenge I face as a criminal defense attorney in every case I accept is not only to determine who is lying, but if everyone is lying, what is the truth? 

The fact that everyone lies was brought home this past week with the revelation that the vaunted FBI crime lab lied on almost every hair analysis case they handled for the past thirty years. In the wake of the scandal are the innocent men and women who were wrongfully incarcerated by junk science. In the last case I read about, the FBI matched a hair to a defendant, testifying that the odds of a match were one in ten million. The testimony turned out to be false.  The hair sample allegedly matched to the defendant was from a dog. About the best you could say about that is "right planet, wrong species."

The simple lesson for myself and my fellow criminal practitioners is to never accept any of the evidence the prosecution puts forward in any case without first investigating and challenging the evidence. Many times, for strategic reasons, I will not care if scientific evidence links a client to a scene. 

Say I am representing a woman who killed her domestic partner and wants me to raise the battered-spouse syndrome in connection with self defense. A fingerprint that puts the client at the scene is probably meaningless in terms of the overall defense. But a good criminal defense attorney examines all the evidence. Even though the client may not deny being at the scene, the ability to show that the prosecution relied on faulty -if not terribly relevant- evidence- is an opportunity many attorneys overlook. So the lesson from this week's FBI hair analysis scandal is to challenge everything. Or as an old, grizzled criminal defense attorney from Brooklyn once told me: "The only thing I waive (wave) in court is the American flag." 

When Lenny Fusfield told me that, I was a young and impressionable law student. It was one of the first lessons in courtroom strategy that I was ever given, and I can count the times I have deviated from that strategy, and most of the time it has been to my regret. 

When House said "everyone lies" he was talking mostly about his patients. In that regard, clients will often shade their version of events, many times to avoid upsetting me.  Clients think that if they tell me exactly what happened I won't want to represent them because of their criminal conduct. This is entirely natural.

But to quote Hyman Roth from the Godfather II "This is the business we have chosen."  As I often tell clients,  "If I couldn't represent people charged with what you have been charged with, I would have stayed being a prosecutor."

When my client's deny involvement in a crime, I want to believe them.  But I do so at my, and more importantly, their own peril.  And yet, as you will see below, I don't believe them at my own peril as well.

The more I know about the actual facts, the better I can help them. 
The more I know about what occurred, the better I am able to determine when police are engaging in, what I call TEJTM investigation: "The ends justify the means". 

I very often see police prevaricate their actions in an investigation because they are "sure" they have the right guy, and they'll be damned if they will let them get off because of something inconvenient like the truth. The best police investigators don't do this, and they are in fact the hardest for me to cross examine, because the truth is the truth and jurors will instinctively trust a police officer who is telling the truth, even if it is to the detriment in the case. 

The worst and perhaps most tragic example of this was my representation of a client in the re-trial of a tragic murder  that occurred in 1989. The client gave a confession, and then spent two decades saying that the police threatened his family and didn't honor his request for an attorney during the interrogation. The client was originally sentenced to death and the conviction was reversed for other reasons. During the second trial the tape of the interrogation surfaced after 20 years, and sure enough the client is on tape asking for an attorney and the police respond by threatening him and his family.  The police, having previously denied at deposition and the first trial what was now clearly on tape, were stuck with their former testimony. It did not go well for them at trial.

Everyone lies.  Except every now and then a client that has every reason to lie, and whom no one believes, tells the truth. And there is the ultimate challenge for criminal defense attorneys: to challenge the police when all the evidence seems in their favor and to believe the client when no one else does. 

It's a challenge. 

PLR. 


 

FELONY MURDER

“I will set you free.”

Exodus 6:6

For a criminal defense attorney, the story of Passover, the freeing of the Jewish slaves from Egypt, has to be inspiring.  Isn’t the unspoken and at times spoken motto of our profession “Let my people go?”

The analogy fails, most of the time, because we represent clients who usually have done something wrong that our laws say merit punishment. The Jews on the other hand, were in bondage.  But this question, at its core, is the examination of the unjust bondage of people.

The federal government and the justice department have now, slowly, begun to recognize the unjust incarceration of tens of thousands of low-level drug offenders, the victims of the 1980’s war on drugs.  Our prisons are littered with harmless inmates, many of whom did nothing more than make the mistake of agreeing to take a package for someone for a few dollars. These people- mothers, fathers, grandparents- are serving draconian sentences of decades. The tide is beginning to turn.

Not so for Florida’s felony murder law.

In Florida, a person can be convicted of first-degree murder two ways. There is the traditional way of intentionally killing someone with premeditation, and there is the untraditional way of being involved in a different crime- a felony, in which someone is killed, almost always unintentionally. 

The crimes are different. By definition the type of person is different- the cold hearted killer versus the person being in the wrong place at the wrong time, but  the penalties are exactly the same: execution or life in prison without the possibility of parole.

For prosecutors, the felony murder rule greatly simplifies their burden of proof. Premeditated first-degree murder contains an element of proof- planning and premeditation that is often hard to prove. But if, before, or during the murder, the defendant took something, even of small value, then the prosecutors can charge both premeditated murder and felony murder, and the jury can choose between whatever theory they want. The prosecution  does not need to prove premeditation in felony murder cases. The penalty is the same when the defendant is convicted; he or she is treated as if they had committed the worst possible crime- premeditated murder, and sentenced accordingly.

I recently concluded the representation of a young man, who at age eighteen was accused of going with four other young men (their ages ranging between sixteen and eighteen at the time) and burglarizing the house of a wealthy athlete.  My client was not the person who brought the gun and was not the person who fired the weapon, but my client was facing just as much time –life in prison without parole- as the person who fired the gun.

The case was a tragedy in every sense of the word. A young man with a family was killed in the prime of his life. He was not supposed to be home at the time of the burglary, and a tragic set of circumstances put him the position of being unable to call 911 and having to defend his family, which resulted in one errant gunshot that hit him in the leg and caused his terribly tragic death.

My client spent seven years in pre-trial detention contemplating his role in that one horrible night that took a life, and ruined several. My client had a negligible juvenile record. He came from a broken home, but with a mother who loved him dearly and did her best. He was a high school athlete, and had fathered a child before he was arrested. In jail he matured from a teenager into a young man; thoughtful, introspective at times, and almost uncomprehendingly frightened at the prospect of the  loss of most of the rest of his life.

If we tried the case, we risked losing the felony murder count, and the judge, one of the best I have ever had the pleasure of knowing, would be forced to sentence him to life in prison without parole. If there was a deal to be made, it would have to be made with the prosecution, because in Florida, only prosecutors can reduce charges and waive minimum mandatory sentences.

The prosecutor was and is, in my opinion, the best lawyer in his office. He is fair and honest and thoroughly prepared. He would have every advantage at trial and I couldn’t count on him making any mistakes. Behind the prosecutor was the family of the deceased, justifiably aggrieved at the loss of their son. I am a father. I would feel the same way. 

But I couldn’t negotiate this case based on what was fair. I couldn’t involve the wise and experienced judge into the negotiations, getting his input on what was a fair sentence, because Florida’s legislators have rendered judges mostly powerless in sentencing defendants in cases where there are minimum mandatory sentences.

So I had to deal with the prosecution, which meant I was really dealing with the family of deceased,  and the prosecutors were middle-men.  Not to cheapen this process or the lives and pain of all involved, but imagine buying a car where every time you make an offer the salesman leaves to go and “speak with his manager.”  Any offer I made to resolve the case had to be cleared with the family of the deceased. So now I was dealing indirectly with people whose emotions were justifiably dictating their feelings. I don’t begrudge for one moment the pain they felt or their hatred of my client, but should they have been the ones making the decision in this case?

Because that’s what Florida’s felony murder laws have done. The judge is powerless to waive the minimum mandatory life sentence. Only the prosecution can do that. And prosecutors won’t make an offer to resolve a case that the next of kin won’t approve.

So to defend my client and work to have him justly sentenced for his role in this case,  I am indirectly dealing with the people whose emotions are justifiably inflamed. Powerless to stop the death of their loved one, they now hold almost all the cards over what the punishment should be. Is that what we want? Victims deciding punishment? The role of a judge reduced to a bystander. The role of a prosecutor reduced to a conduit of plea negotiations. The roles of professionals reduced, while the roles of non-professionals and their emotions dictate what the final sentence will be.

I am not an expert, but isn’t this what Sharia law requires? An eye for an eye? Hands chopped off for stealing, people lashed in a public square for premarital sex or dancing in public.

Whether or not we want this system, that is the system we have. I do not advocate for silencing victims or next of kin. They should be heard. But they are the least able to arrive at a fair and just sentence, and yet they are currently in many cases the final arbiter of such sentences in cases like these.

Nobody won here. I did my job with my trial partner and we saved my client’s life. He will not spend the rest of his life in prison. But in my opinion his sentence is ten years more than it should have been. And if I am wrong, then I would rather have a judge make the final decision and tell me I am wrong, then have the sentence issued de facto, by the family of the deceased.

I practice a profession and I write this blog about my profession. I   Perhaps many non-professional people who have suffered the murder of a loved one will think very critically of this essay. “My son is dead” they will say, “your client isn’t. He can still call his mother.” And they are right. Their pain is never ending and they have the right to mourn their loss and  hate the people involved. I can’t ever challenge their feelings nor would I. They are, in a word, “entitled” to feel the way they feel.

Are we a State that is ruled by law and that sentences its citizens in a rational and fair way? Or do we believe that there should be no fairness in sentencing? That those who are involved in a murder, in even the most tangential way, should suffer the ultimate penalties?

Right now, from my perspective, I do not like the answers I am seeing to those questions.