When Snitches are just Cooperating rather than Snitching

The term "snitch" never applies to one's client who -for whatever reasons- decided to cooperate. It is reserved for those who are shafting your client by helping the government. We go to battle against them presuming them to be liars, and we certainly try to show juries they are prevaricators of the worst kind and for the worst motives.

But I have learned that sometimes -unusual, but it happens- some of these fellows can be of great assistance to your client. For example, I recently had a case in which every government witness who had stated anything about my client seemed to involve him as the owner of marihuana and cocaine drug points in a public housing project. My client always denied that he dealt with any cocaine. They also involved him in a few murders, and the government intended to present that evidence as well. My client denied ever participating in any murders.

Some months back, one of my client's co-defendants --who knew him far better than any of the other witnesses-- decided to cooperate (see? . . . no "snitching" here) with the government. We had been trying to reach a plea agreement for some time based solely on my client's marihuana distribution and leaving out any cocaine or murders. This had been impossible until that co-defendant started cooperating. He was the supplier of marihuana for my client and had participated in the very murders in which others had stated my client had participated. He has clarified that my client had nothing to do with the murders, and that my client sold only marihuana, and the government considers him a much more knowledgeable witness than the others, as least as regards my client.

So you can see that this is one case of a snitch actually coming to one's assistance by simply being truthful.

Penny-wise Pound-foolish on CJA Voucher Approvals

I once complained to one of our judges --who is penny-wise and pound foolish regarding CJA voucher approvals-- that she was going overboard when she would not even compensate for attending to calls from some of my clients' relatives unless it was directly related to either obtaining documents, witnesses, or matters of bail, etc. In other words, if the guy's mom called to ask how the case was going, and that her baby had said such and such, I would not be able to invoice for that call. I told the judge that there was a simple solution to this: if I did not take mom's call, the client -who would end up doing whatever mom said was right- would opt for trial, and then she could compensate me for all the trial preparation and trial hours, etc. Another thing that might happen if I did not take mom's call is that her baby would file a pro se motion complaining about me, and create such a situation where the Judge might end up appointing substitute counsel, who would then have to get up to speed, and properly invoice for much of the work I had already done. Neither one of these is a very cost-effective alternative. I'm not certain the Judge has mended her ways, so I have to add a paragraph explaining this to every CJA Voucher cover letter in cases before her (obviously when it involves a defendant of the sort I have described). Of course, I would take mom's call anyway, even if the judge did not approve payment for this, but one should not have to go through all this explanation. If the Court does not trust the attorneys it has on the CJA Panel, it should remove them. I do not mean to say that they should blindly approve everything, but most attorneys I know usually have spent more time than they ever invoice in any particular case. I mean, can one invoice for all those moments one spends thinking about a case, even while shaving, having breakfast with your wife looking at you and asking "what are you thinking of"?

The same Judge wants counsel to include in the attachments to the CJA Voucher what each call or meeting with defendant concerned. Sometimes this is a no brainer, such as "reviewing discovery materials obtained on 10/20/04," or "reviewing presentence report," etc. I don't spend my days at the federal detention facility visiting clients. Many times when I go I may have a very important reason to meet with two clients, and I bring down a third just so he knows I have not forgotten him, even if I only have a very brief meeting with him. At times, when I go to meet a client, he asks about (or disputes) matters I have previously explained to him, but which he either failed to grasp, or simply can't or does not want to accept. Do I have to explain that I spent the time with client once more explaining to him that, yes, even though he was acquitted of the murder charges in a previous local case before the Commonwealth of Puerto Rico courts, the feds are now alleging that he committed said murder in furtherance of the instant drug trafficking conspiracy and that they can present all of the evidence in the instant case, even though (at least pre-Blakely) the jury will never have to pass upon whether he in fact had anything to do with the murder, but merely whether the conspiracy involved in excess of 5 kilograms of cocaine, and that if they find him guilty the judge can sentence him to life if he concludes that it is more likely than not that he in fact committed said murder? Maybe I could just state: "Explaining for the fourth time to client with common sense that the sentencing guidelines allow for a cross reference to murder guidelines. Client has found it difficult to grasp how he could have been acquitted of the murder charges and how they can use it to sentence him now."

Oh, well, maybe Booker and Fanfan will make my life easier.

"The 3 Offers Rule"

See post at Macondo Law about "But I still have 2 more offers" and other trends which is a good example of the difficulty in getting some clients to comprehend how plea bargaining even works. And, believe me, I always try to have them understand.

Political Priorities: There's that "Killer Weed" and then there's that "Real Killer Weed"

I recall being at a supervised release revocation hearing for a client. It was the third time he had tested positive for marihuana, so the judge was somewhat upset that my client had not taken advantage of the earlier breaks he had given him.

A brief recess had been called, and I immediately ran outside to the courthouse entrance to smoke a cigarette. My client came with me. My cousin's wife, who at the time clerked for a federal judge, came out on her way to lunch and, seeing me smoking, said "Tom, you're going to kill yourself. Stop smoking!"

I could only wonder at the irony of the fact that I was trying to avoid having my client go to prison for having smoked marihuana which, while illegal, would hardly end up killing him, while I was standing outside the courthouse at the first chance to smoke a cigarette, which will probably kill me or at least cause serious health problems, but my weed was legal. My client did not even smoke cigarettes because, as he told me, "that stuff screws you up." I went back in and I believe that I was able to convince the judge not to revoke supervised release.

What this blog is about

Every criminal defense lawyer I have ever met has some good stories about some cases they have been involved in, their clients, the judges presiding over the case, or the prosecutors. We also have stories about the effect clients' families and friends have on some of our cases.

There are also stories about that biggest of all criminal defense law firm - the one made up of all the jailhouse lawyers housed with our clients, and how our clients pay more attention (and often money) to them than the attention (and often money) they pay their own lawyers.

Then there are those "lawyers" who are always hustling cases by suggesting either directly or through third parties -other inmates, paralegals and chasers- that the inmate should switch lawyers because nobody who is Court-appointed or a federal public defender is going to look out for their interests the same as if the guy had retained "his own" attorney. There are very good reasons why criminal defendants time and again fall for this dishonest pitch. More often than not, at least as regards criminal defense lawyers who practice before the U.S. District Court in Puerto Rico, the representation provided by the Federal Public Defender is of very good quality, many times much better than the representation afforded by many attorneys in private practice. And as to attorneys in the Criminal Justice Act panel, I can only say that -by and large- they are very dedicated to their clients, and I have yet to meet one of these attorneys who pays more attention to their paying clients than to their appointed ones. The few that do, are probably irresponsible attorneys to begin with, and you would be better off with someone else.

Then there are the federal criminal laws, including the draconian (seems to be the "in" word for describing the guidelines) federal sentencing guidelines, and how these so-called guidelines have affected the practice of law, not to mention chilled defendants' exercise of their right to jury trial, and practically eviscerated the proof beyond a reasonable doubt standard in so many sentencing enhancing aspects, etc. In many cases, for example, the Government no longer needs to go through the complex Continuing Criminal Enterprise provisions to put someone away for life. It often suffices to charge the same person with a conspiracy involving sufficient amounts of drugs, and other adjustments that will increase the sentencing range to life can be taken care of at the time of sentencing by the judge using the preponderance of the evidence standard, hearsay, and what have you. This is also a corrupting influence in the criminal justice system. Blakely's aftermath may or may not assist in clearing this up, depending first on what the Supreme Court does in Booker and Fanfan, as well as in Shepard (possible death knell for Almendarez-Torres) does.

These and some more stories will form part of this blog, although the names will be altered to protect both the guilty, the not guilty and the innocent. Don't be confused, since "not guilty" is not the same as "innocent." All the "innocent" are "not guilty," but not all the "not guilty" are "innocent." See United States v. Mendoza-Acevedo, 950 F.2d 1 (1st Cir. 1991) (discussing jury instruction on guilt or innocence of the accused v. guilt or lack therof, and agreeing that difference between not guilty and innocent is more than semantics, as district court had labeled it).