Three Ways to Make Sure Your Attorney is on Top of Your Criminal Case

Anonymous Comment: AS to point 3, DA's do not change their offers every day like their clothes. In CA an offer is made at the pre trial conference and it usually remains the offer until the day of trial. Sometimes if you have special facts speaking to the DA with decision making power will help but often not. It is not true that a position held for a long time by the DA means your attorney is doing nothing.

Lawyer's Comment: I don't mean to bang on the author here because I'm sure what he says is true out in Maryland however, things are a little different here in Illinois. First, the court automatically order discovery in felony cases. Not that your attorney might not need to request additional discovery but the court gets the ball rolling. Second, defendants have a very limited access to discovery by Supreme Court rule, again controlled by the courts. Third, suppressions are not common. Fourth, there is a difference between negotiating and begging and sometimes there is no room for negotiation. The facts are what they are. We can't just "find new evidence that is exculpatory".

Lawyer's Comment: The post from Mr. Vaupel is astute. Under the Constitution, a case called 'Brady v. Maryland,' and almost every state's statutes, the DA's office has to turn over all discovery material to criminal defendants. While filing a form motion is nice and I do it in every case, it's really not mandatory. If you think there's something else helpful that you wouldn't ordinarily get (like a police officer's log book or a security tape from a store or parking lot), filing an additional motion to compel its disclosure might be necessary, but this is somewhat rare. Similarly, filing motions to suppress or dismiss are not necessary or appropriate in most cases. A good, experienced criminal lawyer will be able to identify whether a client has a viable motion issue pretty quickly. It's a bad habit to get into to file weak, borderline frivolous motions. You hurt your standing in the eyes of the judge by seeming like you don't understand the law, you piss the DA off by making them do more work when the result is a foregone conclusion, you clog the court's calendar, and you waste your own time that could be better spent on other cases. Now, some cases require motions to suppress certain evidence or to dismiss charges. A lawyer should work dilligently and put his (or her) best effort into writing them and preparing for the hearings. This is not something that happens in "almost every case," though.

Lawyer's Comment: This is a great example of how different jurisdictions handle the same types of issues. Take the Suppression issue - here in Florida, we have very detailed discovery procedures and rules. We almost never have preliminary hearings. Filing a Motion to Suppress as an automatic reflex is absolutely the kiss of credibility death here, yet the failure to do so could be construed as outright negligence in another jurisdiction. Therefore, I would be reluctant to change my normal operating parameters without good reason, but I am just as reluctant to criticize another lawyer practicing in another jurisdiction just because that attorney has good cause to handle a legal matter in exactly the opposite manner than I would handle it in Florida.

Anonymous Comment: Discovery, absolutely! And I agree with your statement: "With a clear and effective discovery motion endorsed by the judge you can argue that the burden was on the prosecutor to find this evidence and turn it over long ago." Let me add, too, that one would want an attorney to make a detailed request for exculpatory evidence under Brady v. Maryland—particularly in a felony case or any case involving multiple statements, multiple defendants, or multiple investigators. Conflicting statements are discoverable and useful. Another thing that I practice: always send your clients (or if you're a client, expect that your attorney would send to you) copies of every motion, letter, pleading, etc. filed or sent in your case. Law practice management Guru, Atty. Jay Foonberg of L.A. even has a nursery rhyme for court filings--"one for the court, one for me, and one for the client, who pays the fee." Regarding motions to suppress, in Ohio we have a 15-day deadline for those following arraignment. In that case, you're stuck filing a shotgun motion to suppress. I usually do that, then update it with something point-specific prior to requesting a hearing on the motion.

Lawyer's Comment: I. I agree with the other commentators. Some DA's make an offer with room for negotiation, others make their first, last and final offer at the start. Some have some flexibility. But unless you know a particular DA often changes their mind, OR you bring new facts or evidence to their attention, it is the rare exception, definitely not the rule, that an offer changes over time. If anything, it's likely to get worse over time if the DA has to actively work on the file: respond to motions, etc. When I was inexperienced I tried a couple times to go "over the head" of the DA when I didn't like their offer. I was soundly rebuffed and told that it wasn't their case, they were not going to overrule the assigned ADA, (Luckily the second time I did this I got the second in command, the Deputy DA, a very kindly fellow who pulled me aside and told me essentially that this wasn't kosher and was only going to make me enemies. I am grateful to him. I don't mind making enemies when fighting for my clients, but not when it is pointless.) Since then I went to the DA of a county when an ADA's behavior was outragous, unprofessional and simply inappropriate. He told me that since it wasn't done in open court, and since the ADA apologized, "tough luck." In that case I actually brought motions for prosecutorial misconduct and discriminatory prosection, but the DA himself didn't give a damn. I agree that your attorney should always be looking for exculpatory evidence, but new evidence is going to emerge generally at distinct points in time: at the beginning of the case; after discovery is produced; after motions are filed; and possibly just before trial in connection with motions in limine. If new evidence is constantly popping up, then the attorney did a very poor job of interviewing the client and investigating the case at the outset. If new evidence is found, ABSOLUTELY go back and present your case to the ADA. But if not, you are just going to annoy the hell out of him by repeating the same things over and over, and your offer isn't going to improve. II. I file and argue more motions than almost any criminal defense lawyer that I know. It's something that I am good at and something that I am often successful at. But it is ABSURD to say that "Almost every case requires a motion to suppress or dismiss." 1) You ethically have to have some good faith belief that there is a basis for your motion. Sometimes there is none. 2) Making the ADA jump through hoops and answer your motion and call in the cops to testify, etc. is going to create work for him and probably annoy him. If it helps your client, then tough. But to go through the motions, is pointless. The ADA will almost certainly lower or withdraw his initial offer. (In fact written offers in several counties in my state contain standard clauses that require a) no new violations, and b) a straight guilty or no contest plea, promptly. Any dispositive motions automatically nullify the offer. Now, if the ADA is already being a jerk and you already have rejected his offer as insufficient, and you probably going to trial. Then go ahead and piss him off, and attempt to get some extra discovery. But those are the unusual cases and 3) Even if you are dead right on the law and the facts, you still have to get a court to agree with you. Virtually every judge is going to take every cops word as gospel and outside witness, (let alone your client), testimony will carry little weight, (unless you have a congregation of nuns as witnesses). So even if your client is telling the truth and his buddies back him up, it probably won't help. Cops all the time on the stand and judges either believe them or go along with it, figuring, "the guy is guilty anyway." If you have physical evidence to present or can find contradictions in the police reports that's different, but the minority of cases require a motion to suppress or dismiss, or you are doing your client a BIG disservice.

Lawyer's Comment: The points raised in the comments by other attorneys are helpful. I would add that every person's case is different, and even when it is easily categorized as, say a DUI or armed robbery, it still has a unique set of facts related to the situation. No one should expect a good attorney to waste the court's time with motions that don't have any merit. We should all expect attorneys to file motions to protect important rights and interests, even if the court might not initially be receptive, as long as the motion is warranted by the facts and by the law. Those who want assurance that their case is on track after they've hired an attorney, should ask for the attorney's impressions on the case. It also makes sense for the attorney to describe their "game plan" for handling the your unique set of facts, keeping in mind the relevant law. The attorney ought to identify some concrete steps, which might include the filing of specific motions, demands for information from the prosecutor, settlement discussions (if appropriate), and investigation to root out any facts favorable to you. Make sure your attorney agrees to this, and ask for an estimated time line for the steps you've agreed on. Now that you know what is supposed to be happening you can make it clear to the attorney that you expect to be kept informed of any changes in the status of your case. If new facts or legal research show that the game plan needs to be changed, you should be informed of any changes in the case and informed about the new strategy. Since your attorney has agreed to all of this, it will be much easier for you to be kept in the loop, and you'll know if your attorney hasn't kept on top of things.

Lawyer's Comment: I agree with the other comentators who explain that every jurisdiction has its own rules and every case has its own needs. That is why it is so important to hire an attorney who specializes in the area of law that you need, who is also a regular player in that court. I know the idiosyncracies of the local ADAs and judges in the courts in which I practice. I also know how to get that information when I travel to a foreign courts, which is again why its important to get a lawyer who knows what he or she is doing. Your lawyer must know what works and what doesn't in the court where YOUR case is called. Many judges will not allow certain motions, regardless of their merit. I know that is what appeals courts are for but there are other ways to get desired results. What client wants to wait for an appeal to overturn a motion denied. Repititious boilerplate documents do little more that anger judges and ADAs and whitle away the crediblity of the attorney who submits them. It does cover your butt, but most of my clients are far more concerned with my results than whether or not I papered the trail properly. Results Matter!