Wednesday, April 25, 2012

Are criminals more creative than the rest of us?

Steve Jobs guided Pixar and Apple to extraordinarily creative heights. But, by many accounts he was a jerk. Bill Clinton is one of the most brilliant political minds of his generation. But he repeatedly lied to the American people and justified all kinds of immoral behavior. Hollywood simultaneously bleeds both creativity and immorality. Is there a connection between creativity and bad behavior?

A new study in the Journal of Personality and Social Psychology suggests that those of us who follow the rules might be too stupid to think of justifications not to. Five studies conducted by professors at Harvard and Duke show that "creative individuals are more likely to be dishonest." It's not because they are smarter. It is because "creativity leads people to more easily come up with justifications for their unscrupulous actions."

That made me think of a new excuse that my criminal defense clients can use for being dishonest: "I'm too creative to tell the truth." Sometimes, as a lawyer, I need to be creative when I am explaining my clients' behavior.

Tuesday, April 24, 2012

Bringing your copy of Wikipedia to court

Jesus Malverde is the patron saint of illegal drug traffickers in Mexico. He has achieved a sort of "Robin Hood-like status." At least that's what Wikipedia says. And the Utah Supreme Court relied on that information in a footnote in a 2006 opinion citing Wikipedia directly.

This morning, the Wall Street Journal Law Blog had a piece on federal appeals courts citing Wikipedia as authority. According to their Westlaw search, since 2007, "federal courts of appeals have cited Wikipedia about 95 times."

That made me wonder, "Have the Utah appellate courts ever cited Wikipedia?" A Google Scholar search reveals that the Supreme Court has.

In State v. Alvarez, police officers were investigating a suspected drug dealer when they looked into his car and saw some sort of representation of Jesus Malverde. Based on that and other evidence they observed, they questioned Alvarez about drug dealing. The Supreme Court decided that based partly on their possession of a representation of the "patron saint of drug dealing" it was reasonable for the two police officers to question Alvarez about whether he dealt drugs and to ask him to open his mouth to see if he was hiding drugs.

Here are the results of the Utah Supreme Court's internet research:
The topic of the personage Jesus Malverde was a subject of extensive discussion at the suppression hearing. While this court professes no special expertise in hagiology or folklore, some independent research reveals that Jesus Malverde is not exclusively or historically associated with the drug culture. He is a regional folk hero, in the tradition of Robin Hood, who is popular among the poor and disadvantaged of the Mexican state of Sinaloa. Jesus Malverde, Wikipedia, (last visited October 6, 2006).
Maybe criminal defense lawyers should start citing to Wikipedia in their legal briefs. If you want to cite Wikipedia, here is a helpful article with some tips on how to make sure that the judges see the version of the entry that you want them to see.

Friday, April 20, 2012

Answers to the 10 Most Common Questions in Criminal Cases

1. Who can I talk to about my case?
You should only talk to your lawyer about the charges against you. Almost anyone else that you talk to could be subpoenaed to testify against you and tell what you told them. Your lawyer cannot tell anyone what you tell him.

One of the biggest mistakes you can make is talking to people at the jail about your case. The other inmates might decide to see if they can make a deal to be in jail for less time in exchange for testifying against you.

The telephone calls at the jail are all recorded, so you can't even speak to your family about your case over the phone because those conversations could be used against you.

It is hard to do, but don't talk to anyone but your lawyer about the charges against you. Blame your lawyer. If someone asks you about your case, just say, "My lawyer doesn't want me to talk to anyone about the case until it is all over. I wish I could."

2. What should I tell my lawyer?
Your lawyer is on your side and can't tell anyone what you tell him. Your lawyer needs all the information he can get to defend you. Some people think that a lawyer won't fight as hard for his clients if he knows they are guilty. That is not true. Your lawyer's job is to make sure that you don't get convicted unless the prosecutor can prove the case. To defend you, your lawyer needs all the information.

3. How do I get my bail reduced?
When you get charged with a crime, you can be (1) released on you own recognizance, (2) allowed to pay bail, or (3) held in jail until trial. The judge considers the severity of the crime you are accused of, the likelihood that you will come back to court if released, and the danger you present to the community if you are allowed to be released.

In Salt Lake County, there is a program called Pretrial Services that monitors people while waiting for trial. Usually, if you are approved to be supervised by Pretrial Services, you won't have to pay bail.

If the judge allows bail, it will be either cash only, or bondable. If your bail is bondable, you can use a bail bondsman. They usually charge 10% of the amount the court requires. So if your bond were set at $10,000 bondable, you could pay a bail bondsman $1,000 and they would be responsible for the rest.

Your lawyer can argue to the judge that bail should not be required or that it should be reduced by presenting evidence that you are not a flight risk and not a danger to the community.

4. Do I want a preliminary hearing?
In Utah, criminal defendants have the right to a preliminary hearing in all felony cases and in all cases where they are charged with a Class A Misdemeanor. At the preliminary hearing, the judge has to find probable cause that a crime was committed and that you committed it. Probable cause is a very low standard, so if the prosecutor has any evidence, the judge will probably find that there is probable cause.

If the judge finds probable cause, the judge binds the case over for trial.

However, even if the case gets bound over for trial, preliminary hearing is very helpful because it gives you and your lawyer a preview of the prosecution's case. Your lawyer usually gets to cross-examine some of the key prosecution witnesses. So, if a case is going to trial, preliminary hearing can be a valuable tool in learning more about the weaknesses and strengths of the case against you.

5. Should I testify at my preliminary hearing?
At preliminary hearing, the judge is only interested in whether there is any evidence to support the charges against you. The judge is not deciding if you are innocent or guilty or even if you are likely to be convicted. Because of that, the judge has to view all of the evidence from the prosecution's perspective.

There is usually no point to testifying at your preliminary hearing and it can be very dangerous. If you agree to testify, you can be cross-examined by the prosecutor and you might say something that will hurt you at trial. Even the best evidence on the defense's side probably won't help you at preliminary hearing, so it is probably better to wait until trial to testify or present much evidence.

6. Can the victim drop the charges against me?
No. The victim can ask the prosecutor to drop the charges, but the prosecutor can go forward with the case even if the victim does not want to.

The prosecutor can also force people to testify by subpoenaing them. That includes the victim. In some cases, the victim or witness can refuse to testify by claiming a privilege like spousal privilege, but in most cases, the prosecutor can ask the judge to jail a witness who refuses to testify or who gives false testimony.

7. Should I go to trial?
You always have the right to go to trial. If you are innocent and the prosecutor cannot prove the case against you, you should definitely go to trial. Some people think that the prosecutor must have a great case if he filed the case against you. That is not always true. When I was a prosecutor, I was forced to prosecute cases with very thin evidence. So your lawyer needs to do a thorough investigation and decide whether there is enough evidence to convict you.

In cases where there is strong evidence against you, you might need to decide between taking a plea bargain or going to trial. Our firm's philosophy is that if the prosecution isn't offering a good deal, we should go to trial even if our chances are small. You don't have any chance of winning if you plead guilty.

However, in many cases, the prosecution has good evidence and offers a fair deal to resolve the case without trial. In the end, your lawyer can't decide whether to take a deal or go to trial, but he can give you advice. Every case is different. If the deal is good enough and the evidence against you is strong, you might want to consider taking a plea bargain.

8. How do I get the best deal?
I frequently get asked by my clients, "Are you a bulldog? Do you fight for your clients?" My answer is, "Yes, I fight. But I fight smart."

Your lawyer has to be able to negotiate with prosecutors or you are going to get a bad deal. Your lawyer needs to be able to understand the prosecutor's concerns about the case and have the creativity to address those concerns while protecting your interests. Otherwise, you might end up going to trial with a bulldog lawyer and a mountain of evidence against you. If that happens, you might not be happy with the result.

Throughout the State, different offices have different policies on making offers and different schedules for when they make the best offer. You need a lawyer who knows the local procedure and can use it to help you.

You also need to provide your lawyer with a detailed picture of your health, employment, family, and school history so that your lawyer can present you to the prosecutor as a person and not as a faceless police report.

9. How long will I be in jail or prison if I lose?
If you get sentenced to a jail term, you will be given a specific sentence. The maximum jail term for a Class A Misdemeanor is 365 days, a Class B Misdemeanor has a maximum of 180 days, and the maximum for a Class C Misdemeanor is 90 days. You can't go to jail on an infraction-level offense.

For prison terms, Utah uses an indeterminate sentencing system. That means that you will be given a range of years you could serve. For Third Degree Felonies, the range is 0-5 years. For Second Degree Felonies, it is 1-15 years. And for First Degree Felonies, the range is usually 5 years to life in prison.

If you get sentenced to prison on a felony, the judge will tell you the range of years you could serve. Then, after you have been at the prison for at least the minimum time required, you will have a review hearing with the Parole Board. They will decide when you are released from the prison.

10. What should I do if my lawyer isn’t doing a good job?
You should not settle for low-quality legal representation. At this time in your life, you need the best. If you don't believe that your lawyer is doing a good job, you should schedule a time to speak to him or her and see if you can resolve the problem. If that doesn't work, you should get a new lawyer.

Friday, April 13, 2012

Marijuana, Prosecutors and Cancer

The defendant stood outside the courthouse, a joint of marijuana in his hand as he puffed furiously to get as much as he could before coming into court. I was a young criminal prosecutor and had only dealt with a few marijuana cases, but I guessed that it probably was not a wise decision to smoke pot in front of the courthouse.

The bailiffs, who are indeed law enforcement officers, came out, questioned him, cited him, and then let him go so he could come inside the court and deal with his previous charge; which was of course, marijuana.

The courtroom was warm and the air conditioner only worked occasionally. I heard it click on as I rose from the prosecution table and went out to the space in between the two double doors leading to the courtroom and spoke to this man. He was older, maybe sixties, and had oxygen with him as well as a cane. There was something wrapped around his belly that looked like a weight belt.

"So Mr. ____, looks like you're here for marijuana charges that arose at your house on April the 22nd. Is that right?"


"And you don't want an attorney to represent you?"


"And looks like you just got cited for some marijuana you were smoking outside the courthouse. I gotta say, I have not seen that before."

He grinned and said, "Yeah, sorry about that. I don't want you to think I'm disrespecting you or the court at all."

"Why would you smoke pot right outside when there's twenty cops in here?"

He was quiet a few moments and I could see tears well up in his eyes. He cleared his throat and said, "I got cancer. It's in my stomach, that's what this thing is. Inoperable. I only got a few years left and this helps with the pain. I understand you do what you gotta do, so I'm not mad at you. But I want you to know that it helps with the pain. Without it I'd be in a hospital bed somewhere just trying to die."

I closed his file. "I'm sorry."

"Yeah, thanks. So, is there gonna be jail time or something?"

"No, follow me."

We walked into the courtroom and when the judge had finished with the case she was handling I stood up and called Mr._______'s case.

"Your Honor," I said. "I would move to dismiss this case in the interests of justice."

The judge replied, "It is so dismissed."

I walked the man to the door and said "Good luck." He looked at me, and I could see tears in his eyes again. All he managed to say was, "Thank you."

There were moments that I enjoyed being a prosecutor but they rarely involved getting convictions. They were the moments that I was able to bring help to somebody that didn't have anyone else to help them. There was no victim in this case. Just a dying man trying to prepare himself for the hereafter. I was proud of what I did.

The County of Salt Lake was not so proud and that's when I began to see that perhaps being a criminal defense attorney fit my personality far more than being a prosecutor. Crimes are charged everyday that have no business taking up space in our courtrooms. I understand that what this man did was illegal, but so is adultery. How many adulters do you see in court facing charges? The reason is because of prosecutorial discretion. The prosecutor is usually the most powerful person in the courtroom. Justice usually is what he believes it to be.

Unfortunately there are some prosecutors that abuse this power. The power itself gives them a feeling of superiority over the people they are prosecuting. I have met many intelligent, sensitive, decent, moral prosecutors. Practicing as a defense attorney across the state, I have also met some petty, angry prosecutors that take out their pettiness on the people coming through the courts.

I still think of that man in court even to this day and the soft Thank You he gave me before leaving. Dismissing unjust cases were some of my proudest moments as a prosecutor. Hopefully, if we're lucky, many prosecutors out there now feel the same way.

Why did you go to law school?

I had been a prosecutor for less than a week and I was standing in front of a jury arguing a DUI case. I had a list of questions on the podium in front of me and a veteran police officer sitting on the witness stand, but I was lost. My mind was racing. “What does actual physical control mean? What is the Baker rule?” I tried to pretend that I was in control.

I’m not sure everything that went through my head at that moment, but one thought must have been, “Why did I go to law school again?”

Why law school?
I didn’t really know any lawyers before I went to law school. There aren’t any in my family. I’m embarrassed to say it now, but one of the big reasons I chose to be a lawyer was that the LSAT (Law School Admissions Test) doesn’t have any math on it while the other graduate school tests do. I had a bachelor’s degree in history and I didn’t want to be a history teacher, so graduate school was pretty much a foregone conclusion. It’s sad that my fear of math partially determined my career path.

I guess that I had thought about being a lawyer before my fear of math set in, though. My wife recently found a little journal I kept in elementary school. In it, I said that I was excited for a mock trial project we were doing because I was going to be able to use the Constitution as my “sword and shield” as I argued for my client. Totally embarrassing, but maybe I had a premonition.

So, I must confess that I had stupid reasons for going to law school. Most people probably do. Now I have to decide each day whether I want to keep practicing law.

Why practice law?
I took a weird path to law school and an even weirder path to my current job. I spent less than a year as a real estate litigator, a little over a year as a prosecutor, and now three years as a private attorney in my own small firm. There have been many times when I thought that going to law school might have been a mistake and I have discouraged my brothers from going to law school. But I actually love my job.

It’s corny, but I actually enjoy helping people. Every now and then, one of my criminal clients writes me a thank you note. I keep them all. No criminal defense lawyer wins every case, so some of my clients are mad at me no matter how hard I fight for them. But I do my best to help them and I make a big difference on their cases. I especially love the notes that come from the mothers of my clients.

I do get to use the Constitution in my practice as well and I love that. I majored in history as an undergrad because I loved studying the founding of our country and the wars that tested our commitment to American ideals. Now I get to help people take advantage of the promises in the Constitution. That’s not half bad.

Lawyers aren’t as bad as you think.
Lawyers have a somewhat deservedly bad reputation. There are some jerk lawyers. But there have been some super cool lawyers too. Lincoln was a lawyer. So was John Adams and most of the other delegates to the Constitutional Convention. A lot of the lawyers I work with are great people who want to do what’s best for their clients.

When you understand the legal system, you have power. You can use that power to help people like Abraham Lincoln and John Adams did, or you can use that power to harass and hurt people. Good lawyers are like superheroes. They rescue their clients from disasters and fight for justice. So, I’m glad I went to law school. And if you’re thinking about going, I’d recommend it to you too.

Related post: How can you be a criminal defense lawyer? People ask me that all the time. This post is my answer.

Monday, April 9, 2012

Trayvon Martin Update: No Grand Jury

Several news outlets have reported that a special prosecutor has decided not to convene a grand jury to review the Trayvon Martin case. As I previously posted, Trayvon Martin was allegedly shot and killed by George Zimmerman in late February.

In Florida, a grand jury is only necessary in "capital cases," meaning cases where the State will ask for the death penalty. Prosecutors also sometimes use grand juries in cases where the decision to prosecute will be controversial. By using a grand jury, the prosecuting attorney can later say that it was the grand jury's decision to prosecute and the prosecutor was just carrying out their decision.

So, the decision by the special prosecutor to not empanel a grand jury does not mean that George Zimmerman won't ever be charged with a crime. It just means that the State of Florida won't seek the death penalty. They could still file charges without a grand jury indictment that asks for something less than the death penalty.

Utah's system is similar to Florida's. Most cases are filed without an indictment from a grand jury. Instead, an Information is filed by the prosecutor that lists the charges.

In federal court, the 5th Amendment to the United States Constitution requires a grand jury indictment before a person can be charged with "a capital, or otherwise infamous crime." That generally means that all felony charges have to be approved by a grand jury. The right to a grand jury indictment is one of the few parts of the Bill of Rights that the Supreme Court has not imposed on the States. In other words, the Constitution requires federal prosecutors to use grand juries, but it does not require State prosecutors to use them.

Indictments are required in federal cases because the founders didn't want prosecutors to have too much power. They wanted a jury of the accused's peers to decide whether there was enough evidence to justify filing criminal charges. This makes sense because even if a person wins their trial, the process of hiring a criminal defense lawyer, investigating and preparing a defense, and going to court can be expensive. Also, the stigma that goes with being charged with a crime is not usually taken away even if a person is found not-guilty at trial.

Practically, though, the grand jury system provides little protection to criminal defendants because grand juries almost always return the indictment that the prosecutor asks for. It has been repeated thousands of times that a prosecutor could probably "indict a ham sandwich" if he wanted to, although no one has tried as far as I know.

Friday, April 6, 2012

Could the Trayvon Martin case happen in Utah?

Trayvon Martin was shot and killed by a neighborhood watch coordinator named George Zimmerman on February 26, 2012. Trayvon was an unarmed, 17-year old African-American boy. So far, no charges have been filed against George Zimmerman because he claims he was acting in self defense.

Florida has a unique self defense law called a "Stand Your Ground" law. The Florida law, in contrast to other more traditional self-defense laws, states that "a person does not have a duty to retreat" before using deadly force in self defense.

Utah's self defense law similarly states that "A person does not have a duty to retreat from the force or threatened force . . . in a place where that person has lawfully entered or remained."

But procedure is everything in criminal law. The police have to follow certain procedures in collecting evidence. The prosecuting attorney has to jump through procedural hoops before going to trial, and the trial judge has to carefully follow procedure to avoid being overruled on appeal. The definition of self defense is not what is preventing an arrest and prosecution in the Travon Martin case. The procedure that police have to follow is the stumbling block.

The difference between Florida's law and Utah's is that under Florida law police have to show probable cause that the shooter did not act in self defense. And they have to show it before they can make an arrest or file charges. Specifically, it says that a police agency "may not arrest [a] person for using force unless it determines that there is probable cause that the force that was used was unlawful." This adds an extra step to what the police need to prove before they can go forward with a charge and arrest.

To add teeth the Florida law makes police put their money where their mouth is. If police cannot prove probable cause, they will have to pay the defendant's attorney fees, court costs, loss of income, and "all expenses incurred." So if police arrest too early and can't disprove self defense basically at the time of arrest, they can end up paying huge lawyers' bills. Prosecutors and police hate this so much they are asking the Florida legislature to repeal the stand-your-ground law.

In Utah, self defense is an affirmative defense. The police and prosecution do not have to do anything to disprove affirmative defenses before trial. At trial, if there is any evidence of self defense, then the prosecution has the burden of disproving it. But in a case like Trayvon Martin's, it might be difficult for the defense attorneys to show any evidence of self defense without their client testifying about what happened. That can be risky and most criminal defense lawyers would love the option to have their client remain silent depending on what the evidence shows.

The Florida law adds an additional hurdle to what the police have to be able to prove before they can arrest someone. That is good for criminal defendants because it means that they are less likely to be arrested as part of a preliminary investigation. Prosecutors and police always have final say over who they arrest and who they prosecute. But the hurdle that is most likely causing police to wait to charge Trayvon Martin's killer is not part of the law in Utah.

5 Best Excuses for Crimes

On a lighter note, 5 excuses for committing a crime that we do not recommend.

  1. I didn’t inhale
 Our 42nd president, Bill Clinton, a trained lawyer: “When I was in England, I experimented with marijuana a time or two, and didn't like it. I didn't inhale and I didn't try it again.”

  1. I had to pee
Petra Cleary, of Washington D.C., tried the old “Call of Nature” excuse. “I told a State Trooper I was speeding because I had to use the bathroom. He told me where the closet restroom was located, followed me and wrote my ticket in the parking lot as I ran inside to use the bathroom.” At least they didn't follow her in the stall to be sure... (source )

  1. I thought it was oregano
Blogger L. Havranek came home one day to find a medicinal marijuana sign posted in his herb garden. His wife nearly gave him a heart attack by posting the sign next to his medicinal, but hopefully non-narcotic, plants.

  1. I forgot I was holding that gun
“Duy Dao took exception to two girls, (ten and fourteen years old), walking on a public street past his house. He lifted his net curtains and started shouting at them, then accused them of making fun of him, at which point he was probably right on the money.” He then pointed a gun at them and threatened them. When police questioned him, Duy claimed that “he ‘forgot’ he was holding the gun.” The police were sympathetic. He probably should have run that excuse by his lawyer.

  1. It was that time of the month
Ma’am, do you have a license to be carrying that weapon?