Saturday, November 17, 2012
Free in Kentucky: "Keepin' em On the Streets": A Year in Jury Trials...: This last week isn’t the first time I’ve gotten looks or words of disapproval. In my line of work, it happens. Job hazards, or whatever....
This last week isn’t the first time I’ve gotten looks or words of disapproval. In my line of work, it happens. Job hazards, or whatever. Sometimes the nasty smirks come after I win a trial. Frequently the scowls or looks of disgust come when I first meet someone and tell them that I’m a criminal defense lawyer. Like I just told them I’m a nazi or something.
Some of it I get. Some of it I don’t understand.
I’m not trying to convince you that I’m a good person. But I would like to clear up some misunderstandings about what criminal defense lawyers do and/or don’t do. My goal is not to “Keep ‘em on the streets!” in the sense of making sure bad people are free. My goal is to make sure my clients don’t get steamrolled by police who abuse their power, and to make sure their constitutional rights are upheld. Because everyone in this country deserves that much.
Let’s start with a couple of principles.
1) Criminal litigation is a great job. It’s fun. It doesn’t get boring. Criminal law is fast paced, in a way that other areas of law can’t even come close to comparing. And in order to be good at criminal law, you have to be able to think quickly, on your feet. In that way it is also very challenging. That’s why I love practicing criminal law.
2) Criminal Defense suits me more than Criminal Prosecution. I understand that some people think I help BAD people to get less punishment - and that such conduct on my part is BAD. But I can’t see myself as a prosecutor. First and foremost, I would feel like an absolute hypocrite trying to punish others for doing “wrong.” I’m not trying to convince you that I’m a good person because I am NOT a good person. Or, at least, I’ve done my fair share of sinning. Maybe your fair share, too. So I couldn’t condemn others for things they’ve done or make a judgment call regarding whether their sins are “worse” than my sins, etc. So I’d rather be on the side that gives second chances. Forgiveness. 70 x 7. I find this side of the V. to be far more morally justifiable. Second, I want to be a voice for the less powerful. The police come in numbers, organized, and trained. They are powerful. When that power is abused, it makes me sick. So I find it very satisfying to make the effort to “keep ‘em honest.”
3) Most Criminal Defense lawyers don’t do what a lot of people think they do. We don’t go in with a 100% guilty client and lie – we don’t just run in and start denying any wrongdoing. Often, the best defense is to explain the wrongdoing as is, because the client is usually over – charged. By getting the truth on the table, we can get the charges reduced to the appropriate level, and move on. That way the client’s happy because they might be doing 1 year instead of 5-10 years in prison. The client may even be an appropriate candidate for probation. My point is, we don’t go sprinting into court with guns blazing, lying about how our client didn’t do anything illegal if they did, in fact, break the law.
With the preceding principles enumerated, let me tell you a little about my year. Jury Trials are tough. They are stressful, require a LOT of preparation (generally 30-80 hours depending on the nature of the trial), and if the case actually goes through trial in front of a jury, it requires lawyers to put forth very intense focus. You have to mind the witness, constantly weigh the possibility of objecting to opposing counsel, check the jury to see if they are responding favorably and take notes for your cross examination, future motions, and closing argument. All of these things are simultaneous. Meanwhile, the very real consideration that someone’s freedom depends on your performance weighs heavily on your mind. It’s a stressful situation.
There are several ways to win a jury trial. The first way is to “beat the offer.” If the offer is 10 years in prison, and the jury convicts your client and gives him only 5 years on a lesser charge, that is a Defense “win.” Because you beat the offer that was on the table. The second way to win a jury trial is to start winning some motions, or get some really good evidence out, and then the other side offers to settle the case on favorable terms for your client. Lastly, and more obviously, you can get a Not Guilty verdict.
My first jury trial of the year was Commonwealth v. Matthew Kustes. This was a relatively minor charge of Trespassing in Fayette County, but the case was more important than the face value of the potential punishment because Kustes was arrested without Probable Cause. That means, if the criminal case was successful, we would have a civil case against the police under 42 U.S.C. 1893. So I was prepared to charge into jury trial on a case that I normally would consider to be… “unworthy” is not the right word, but it’s the first word that comes to mind*… of the time and effort that goes into jury trial. So we put the jury in the box. After I was able to show that Kustes actually had permission to be on the premises and that the police did not have the authority to order him to disburse, we got a directed verdict in the case. That mean the Judge awarded us a Not Guilty verdict without even allowing the jury to deliberate.
The second case that went to jury trial this year was a felony case in central Kentucky. It was of a sensitive nature. I’m not going to go into all of the details of the case, but in general, the allegations were pretty harsh, but the punishment for such allegations was EXTREMELY harsh. If you want to know about it – ask me. I’ll fill you in on what is not confidential information. Regardless, we went to jury trial in Mercer County. While the jury pool waited in the courtroom, the attorneys went back into Judge’s chambers to argue some motions in limine. I started to win some motions, and the Commonwealth asked if we could settle the case. The prosecutor, Richie Bottoms, is an absolute class act and a very professional individual, by the way. Good lawyer. Long story short, my defendant took one year in jail. He was originally facing 10 years in prison and a lifetime on the sex offender registry. This was a “settled on favorable terms” win.
My next trial for the year was Commonwealth v. Latoya Smith. She had a “drug DUI” case in Jefferson District Court. After a hard fought battle, we ended up getting a Not Guilty verdict on the DUI. Again, the prosecutor on the case was very talented and a really classy individual. His name is Ben Wyman. The jury didn’t let us go 100% scot-free. They gave Latoya a $100 fine on a Disorderly Conduct charge. It wasn’t a massive win, but a win nonetheless. We got a Not Guilty verdict and we more than beat the offer.
The next trial was Commonwealth v. Greg Maddox. Maddox was wrongfully accused of assault. This is another case where I won’t go into all of the details because of the sensitive nature of the case. But I can tell you that after about 40 hours of diligent jury trial preparation, we finally got to the day of jury trial. Our case was very strong. After giving the case a last minute review, the prosecutor made the very reasonable agreement to completely dismiss the case against Mr. Maddox. The best way to win a trial is to get a complete dismissal without even having to gamble on the jury’s verdict. It was a big win.
My last trial of 2012 was an absolute brawl. Commonwealth v. Steven Balazs was another “drug DUI” charge in Hardin County. The County Attorney’s office in Hardin County is extremely unreasonable and prefers to waste taxpayer money instead of making decent offers on cases. The prosecutor in this case was no different. Balazs was charged with DUI and Reckless Driving. The commonwealth contended that Balazs was under the influence of the 3 prescription drugs found in his bloodstream. We had substantial evidence on our side that there was some sort of medical event, beyond his control, that caused the bad driving. The jury agreed and only took approximately 7 minutes to deliberate. Not Guilty on DUI. Not Guilty on Reckless Driving.
And there you have it. That concludes my 2012 year in Jury Trials review.
Next year I hope to go completely undefeated as well. But I’ll probably try slightly less cases. Maybe I’ll settle for 3-0 next year.
If you are interested in seeing some of the snippets from trial – like a cross examination of a police officer or a closing argument, they will be up on the internet soon. I will put out a link to them in due time.
*Blatantly stolen literary device, taken from Chuck Palahniuk
*Blatantly stolen literary device, taken from Chuck Palahniuk