How long will you go to jail or prison?

If you are accused of a crime, there is a chance that you will go to jail. Everyone wants to win their case and we’ve won more than our share of cases at trial or by dismissal. But there is sometimes the chance that you will have to go to jail. When you are considering a plea bargain or a trial strategy, you have to consider the possibility of jail time and how long you might have to go to jail or prison.

In Utah, judges have broad powers to decide how long you will go to jail if you are convicted. For example, if you are charged with a Class A misdemeanor, you can be sentenced to up to one year in jail. The judge does not usually have to send you to jail, but can sentence you to anything from 0 days in jail to 365.

But judges frequently refer to forms produced by the Utah Sentencing Commission when deciding on a sentence. Understanding those forms is essential to giving an accurate prediction of a jail sentence.

For serious crimes or when the judge wants extra input, the judge will request a Pre-Sentence Investigation(PSI) from Adult Probation and Parole (AP&P). AP&P uses the same forms to make a recommendation on a jail or prison sentence.

The forms are somewhat complicated, but I will give an example to illustrate how they are used. It is always best to consult an experienced attorney to make sure that a sentencing prediction is accurate.

Sentencing Example: Drug Possession

Mary Jane is accused of selling marijuana in a drug-free-zone (within 1,000 feet of a public park). She has been convicted twice before for possessing marijuana, but she successfully completed probation both times. She pleads guilty to distribution of marijuana, a third degree felony, which was reduced from a first degree felony based on the drug-free-zone and her previous marijuana convictions. Mary Jane has a good job working as a waitress at a diner. She doesn’t make much money, but she supports her kids on her own. She is a single mother. According to the sentencing guidelines, how long could Mary Jane serve in jail or prison?

The maximum sentence for a third degree felony like the one Mary Jane is accused of is a sentence of 0-5 years in the Utah State Prison. If she got that sentence, the judge would send Mary Jane to the prison and the Board of Pardons and Parolewould decide when she would get out at a parole hearing.

However, Mary Jane is very unlikely to be sentenced to prison. To predict her likely jail sentence, we start with the “GeneralMatrix” form. Mary Jane does not have any prior felony convictions. She has two prior misdemeanor convictions, but no juvenile convictions. She was previously on probation, but she never had any problems on probation. She has no violent history and no weapons were used in this offense.

Mary Jane scores three points on the criminal history matrix which places her in the lowest criminal history category.

Next we turn to the “Jail As a Condition of Probation” matrix form. Distribution of marijuana is a 3^rd Other along the top row because it is a third degree felony and it does not involve violence to a person (which would make it more serious) or simple possession of a drug (which would make it less serious). The roman numerals in the left column represent the criminal history category for the defendant and in this case we’ve already determined that Mary Jane falls in the least serious “Criminal History Category I.” A person with the lowest criminal history category who is convicted of a third degree felony “other” offense isrecommended to serve 60 days in jail.

There are three color codes on the “Jail As a Condition of Probation” form. Dark, partially shaded, and light. In the dark-shaded parts of the form, the Sentencing Commission is recommending prison. That means that if a person is charged with certain serious crimes or has extensive criminal history, the Sentencing Commission recommends that judges sentence defendants to prison. Defendants whose sentencing matrix falls in the light areas can hope that no jail will be imposed or that they will get an alternative sentence like ankle monitor or more intensive supervised probation. The partially shaded areas represent the Sentencing Commission’s recommendation that those people at least serve jail time and that the judge should at least consider prison time.

It is also important to consider the “Aggravating and Mitigating Circumstances” form, but that form is the mostsubjective of all the forms. In almost every case, the probation officer, the prosecutor, and the defense attorney can reasonably disagree on the aggravating and mitigating factors.

Conclusion

Judges’ sentencing decisions vary from judge to judge, court to court, and county to county. They are not required to follow the sentencing guidelines and some rarely do. But some judges follow the guidelines religiously and it is important for defense attorneys to understand the matrices and how to use them.

How to Get A Lawyer

HOW TO GET A LAWYER

I knew a lawyer that would show up to court in jeans and a turtle-neck, plead his client guilty to whatever crime he happened to be charged with, collect his $5000 or $10,000 for the case, and move on to the next one.

Not once did I see him work out a great deal or fight the case at trial. All he did was show up, plead them guilty, and leave.

How to get a lawyer is one of the most common questions I get asked as a lawyer myself from friends and acquaintances. Before we dive into how to get a lawyer, let's talk about some ways how to NOT get a lawyer:

1. Yellow Pages: The phone book is a relic from the 80's. Tons of attorneys still advertise on there but very few of the cutting edge firms who stay on top of trends, and more importantly for their clients, on top of recent developments in law and business, advertise there. It only works for a few types of law and even those only if you spend an enormous sum of money. If you're facing a complex litigation matter or are charged with murder, you probably want to steer clear of the phone book. If you have a minor traffic offense or something else that doesn't really impact your life and you don't want to spend a lot of money on a lawyer, phone book might be okay. Although, even for that, I would still recommend searching the internet instead.

2. Fliers at the Jail: If you happen to commit a crime and have to be booked into jail, you may see fliers up for lawyers on some of the pin-up boards. Usually, these lawyers have some sort of deal worked out with someone somewhere that allows them to do this, or they literally just went into the jail and put it up themselves. Either way, that doesn't bode well for you. A good lawyer is never desperate: he will have a line of clients waiting for his services based on referrals. This just reeks of desperation.

3. Arrest Magazines: This is a growing unfortunate trend. People wondering how to get a lawyer often look at these magazines because they're available everywhere. The magazines basically take booking photos of people arrested, put them up on the internet for everyone to see, and then try and blackmail the defendant by sending them a letter saying we'll remove the booking photo for $100 or as much as $3000. If this happens to you, hire a lawyer right away and have them send a cease and desist letter to the magazine with a copy of a lawsuit (called a complaint) that the lawyer will file if the photo is not immediately removed. Unfortunately, the problem is that there will be dozens of other criminal magazines that do the same thing and you can't threaten them all. A small number of lawyers advertise in these magazines; anyone associated with these horrible publications is probably not who you want representing you in court.

4. TV and Billboards: I can't tell you how many awful advertisments for lawyers I've seen on TV and billboards. Again, it stinks of desperation. If you're on TV yelling about your services, you probably don't have that many clients. A sure sign that a lawyer is either not good or doesn't have much experience or is difficult to work with.

HOW TO GET A LAWYER: THE GOOD STUFF

So now that we've talked about some of the ways not to get a lawyer, let's talk about how to get a lawyer in positive ways:

1. Internet: Internet is king. Any firm worth their salt should have a heavy presence online. If they don't, they probably aren't keeping up with the times and that spells bad news for you.

2. Referrals: The second best way to find a lawyer. The reason this was second and not first is that for a firm to rank number one on Google takes a lot of time, money and effort. They would have to be a successful firm to do so which means they probably have a long list of happy former clients. But cases vary from one to the next and your Great Aunt Jill might've gotten a good contract lawyer that does terrible for you. But, it's still a great way to find good lawyers despite the problems.

3. Online Reviews: My partner, Joshua Baron, has a perfect 10 out of 10 Avvo score. I haven't seen a single other lawyer that has that (though I'm sure there's a few). He received that score because he wins lots and lots of cases and publishes about them and is respected by his peers. Online reviews can really help you sort out who to go with. One thing to keep in mind though: sometimes, a lawyer can do an excellent job and the client still may go online and write a bad review about them. I once got a criminal case dismissed and my client gave me a bad review because it took me three months to do it and she wanted it done immediately. So take them with a grain of salt.

HOW TO GET A LAWYER: CONCLUSION

In the end, you're going to have to go with your gut and evaluate a lot of different lawyers. I recommend you speak to at least three different lawyers that specialize in your needed area. Ask a lot of questions like how many cases they have handled, how many victories they have, how many losses, and how quickly you could get in touch with them if you needed to.

After all is said and done, picking a good lawyer just comes down to how you interact with them. The number one factor people have stated is important to them when picking a lawyer is likability. The only way you'll know if you like them is to meet with them so make sure you put in a little bit of work before hiring. Otherwise, you might get the guy in the turtle-neck and pay $10,000 for something you could've done yourself.

Utah DUI and Your Driver License: The Saga Continues

In a previous post we talked about the Driver License Division taking away your license after you receive a DUI in Utah and what to do about it. 

Just to make it more difficult, they change the laws and rules every few years, sometimes every year, and many people don't know what to do after getting a DUI in order to keep their license. While you're busy hopping from one foot to the next, they suspend your license and make it much more difficult to keep your job, get to school, or shuffle your kids around. 

Here's a few additional tips and updates on DUI's and your license to try and prevent the DLD from suspending. If you haven't read our previous post on DUI's and your license, read that first here:

REQUEST A HEARING

It's just amazing to me how many people do not request a driver license hearing after getting a DUI. An attorney can and should do it for you but it has to be done within 10 days. No exceptions. Not even if your grandma's in the hospital. Not if your dog's sick. Not even if the series finale of Breaking Bad is on and you just can't get down to the Driver License Division. You just have to do it. 

If you can't hire an attorney right away (and as I wrote in my previous post, everyone should hire a good DUI attorney right after receiving a DUI. Most firms offer extremely flexible payment plans so take advantage of them) then you will need to request it yourself. It's easy: just go down to your nearest Driver License Division Office and request a driver license hearing for your DUI. Many people choose to do it by mail. I wouldn't recommend this. Mail gets lost or misfiled and your driver license is too important to take that risk. Just go down there and do it or hire a good DUI attorney to do it for you. 

DON'T DO THE HEARING YOURSELF

This should go without saying but many people do the DUI driver license hearing themselves and predictably lose their driver licenses. I wouldn't install my own plumbing system: you hire experts for that sort of thing. Same thing goes here. Your best shot is to have someone in the DUI hearing that knows what they're doing. 

PRIOR DUI'S: AN EASY WAY TO LOSE YOUR LICENSE

Having a prior DUI is asking for you to lose your license. Even if you win the hearing, the DLD has been pulling some sneaky tricks lately. For example, lets say a good attorney gets your DUI dropped to reckless driving or impaired driving, which shouldn't suspend your license. Well if your current DUI is your second, it still suspends, even if you're not convicted of DUI but of something else! Also, even on a first DUI, if you have another alcohol related offense on your record, you may be required to get an ignition interlock device. When enter a deal on the DUI, the Driver License Division suspends your license indefinitely stating that you were required to have an interlock device and they won't give it back unless you get one installed and get them proof. The point is: if you got a DUI, the DLD wants to take your license and will do everything possible to take it from you. 

WORK EXCEPTION LICENSES

Many states have work exception licenses granted to people who receive DUI's. For example, Nevada allows you to drive to work after serving half of your 90 day suspension on a first DUI. Utah does have a work exception, but as one employee at the DLD told us, he has never seen it granted on a DUI. You have to get the DUI reduced to see if you even qualify and then you will have a hearing and be denied. I have never, in the over 1500 DUI cases I've handled as both a prosecutor and a DUI defense attorney, seen even one of these work exception licenses granted. Don't hold your breath if you think this is a way out of your suspension. A much better way is to hire a good DUI attorney and let them do their job. 

THE DLD WANTS YOUR LICENSE

DUI's are unique crimes. You have a massive lobby group, Mothers Against Drunk Driving, who are shaping the laws to be less and less favorable to DUI offenders. The license is where they hit you the hardest. If your license is important to you, and especially if you have a special driving privlege license like a CDL, don't roll the dice just to save a few bucks on a DUI attorney. Hire one and let them deal with the headache. 

The Science of Persuasion

Aesop might have made a good lawyer if he had been born in a different century. In fact, he was probably a better lawyer than most present-day lawyers are.

Lawyers are sometimes identified as people who argue really well - or at least a lot. No one likes that type of lawyer, though I might be one. When I was a kid, people told me I'd make a good lawyer because I loved to argue. I wonder why I wasn't very popular in high school?

Anyway, arguing is not the same thing as persuading. An arguer might make excellent logical debate points, but debaters don't convince many people to change the way they act or think. People who are persuasive can change other's minds.

It is very difficult for people to change their own minds. When people are forced to confront new information that challenges their existing ideas, beliefs, or values they experience discomfort. Psychologists call that discomfort "cognitive dissonance." People are driven to reduce the discomfort and resolve the dissonance. One of the ways people reduce dissonance and make themselves feel better is by simply changing either the new information or the old information. They lie to themselves without realizing it and become so convinced of the lie that they don't remember that changed the truth.

One of Aesop's most famous fables illustrates the way people resolve cognitive dissonance. In the story of the fox and the grapes, a fox comes upon some delicious grapes.

"ONE hot summer’s day a Fox was strolling through an orchard till he came to a bunch of Grapes just ripening on a vine which had been trained over a lofty branch. 'Just the things to quench my thirst,' quoth he. Drawing back a few paces, he took a run and a jump, and just missed the bunch. Turning round again with a One, Two, Three, he jumped up, but with no greater success. Again and again he tried after the tempting morsel, but at last had to give it up, and walked away with his nose in the air, saying: 'I am sure they are sour.'"

This is where the expression "sour grapes" comes from. At the beginning of the story, the fox thinks the grapes are "Just the thing to quench my thirst." But when he cannot have them, he has to confront contradictory ideas: he wants them, but he cannot have them. Rather than living with this dissonance, he changes the first idea. He never wanted them in the first place because they were probably sour. Of course, the grapes never changed. He lied to himself without realizing it.

Everyone does this. Even four-year olds and monkeys lie to themselves to construct a more consonant reality. It is easy to see when someone else does this, but we can rarely see when we are doing it to ourselves.

Because they are people, juries and prosecutors and judges must lie to themselves to reduce cognitive dissonance. They don't like cognitive dissonance any better than the rest of us.

Which is why Aesop would have been a good lawyer. Aesop didn't argue directly. If he had, his stories wouldn't continue to be as popular as they are. His stories are powerful because they help us accept new ideas by minimizing the cognitive dissonance we feel when we hear them. He persuaded people.

Rather than saying explicitly, "Sometimes you act like you don't want something because you can't have it," he told a simple little story about a fox. Who would ever feel defensive about a fox? Aesop isn't saying that you sometimes lie to yourself to resolve cognitive dissonance. No. He is saying the evil foxes lie to themselves sometimes. But then I see other people acting like the fox. And then someone accuses me of "sour grapes." Maybe I am persuaded because I accepted the idea of sour grapes in concept before I was accused of it personally.

Stories are powerful. They can persuade us of things we would never accept in the abstract. Lawyers who can advocate for their clients with powerful stories are more likely to be successful than the ones who just argue logical points all day.

If you are looking for a lawyer, look for one who can tell good stories. And if you are a lawyer, be sneaky. Use your stories like trojan horses to get past your opponent's defenses.

DUI Cop Lisa Steed and the Culture of Corruption

I literally just got off the phone for a DUI driver license hearing for one of my clients where disgraced Utah Highway Patrol trooper Lisa Steed was the arresting officer. For those of you that don't know, a DUI driver license hearing is an administrative hearing where the Driver License Division determines whether to suspend someone's license that has received a DUI.


I knew Lisa Steed had been taken off of patrol. I knew she had lied under oath and a felony drug case was dismissed. I knew the Salt Lake County District Attorney was/is dismissing her DUI cases left and right, and that Davis County has started dismissing them and refusing to file on new ones. The issue is, obviously, she was under oath and did not tell the truth.

Well, I went in armed with this information ready to tear holes in her testimony. She got to testify first about what occurred during the DUI. Then it was my turn to ask her questions.

My first question was, "Isn't true you're not on a patrol anymore?" Before the first question was out of my mouth, the DLD hearing officer yelled that I could not ask her about her credibility. I stated that this whole case was about her credibility to which was responded that this case was about what my client did.

The fact is, the only evidence in the case is the evidence Lisa Steed provided. If she is not credible, the evidence is not credible, but the Driver License Division does not want to acknowledge this.

It is exactly this kind of protectionism that created Lisa Steed in the first place. This video from ABC 4 discusses her tasing someone that was still sitting in their car, arresting people on motorized bikes, lying on the witness stand under oath, and violating UHP policy in the investigation of DUI's. And what was UHP's response? That she's a good trooper and still out on the streets.

Criminal defense attorneys have a bad rap. Many people feel we help criminals get away with crimes. The truth is, we have very little power. The most I can do is convince a jury that a man should not be punished. The most a corrupt cop can do is ruin dozens, even hundreds, of lives.

And yet the government's response, at least from UHP and the Driver License Division, seems to be that even if she is corrupt, even if she is violating policy, violating people's lives, and even assaulting them, we are going to protect her.

The fact that we can't trust our government to protect us from people like Lisa Steed is the truly frightening thing. To be honest, attacking her in defense of my clients is one of the proudest moments I've ever had as a defense attorney. And since I'm appealing this driver license hearing to the district court and subpoenaing Lisa Steed to the stand, I'm expecting I'll have more proud moments like this one.

A gorilla on a basketball court? You'd think you'd notice.

My friend, Brian Joyce, the Ute Gorilla at a Utah football
game. (Photo used without permission).

Our criminal justice system is based largely on eyewitnesses. CSI-type crime shows might make it seem like there is DNA evidence in every case that definitively links one person to every crime, most cases actually revolve around people who saw things.

Unfortunately, there is growing evidence that people can’t see or recall things as well as they think. Take this example: Suppose you were watching a video of two basketball teams passing basketballs back and forth on a basketball court. While they are doing this, a woman in a gorilla suit, walks out onto the court, thumps her chest, and then walks off. You’d notice that, right? And if you didn’t see it, you’d be pretty sure that it didn’t happen while you were watching.

Not necessarily, according to research conducted at Harvard University. Those researchers asked study participants to watch a short video. They were to count the number of passes made by one team and ignore the passes made by the other. While they were focused on this task, the gorilla came out, thumped her chest, and walked away. Half of the participants didn’t see the gorilla. When asked about it, most of them were sure that there was no gorilla in the video. The gorilla was invisible to them because they were temporarily blind to certain things and they didn’t even realize it.

Christopher Chabris and David Simons believe that the subjects were so focused on the relatively difficult tasks of counting the passes made by one team and on ignoring the passes made by the other team that they became blind to information that didn’t relate to those tasks. That finding is interesting, but not totally surprising. We know that when we are focused on one thing we might pay less attention to other things. That is the definition of focus.

The scary thing about the study is that the participants were sure that the gorilla wasn’t on the court during the video. You can imagine these people coming into court and swearing that there was no gorilla. In a criminal case where a defendant might be sent to prison for years, or even put to death, it is frightening to think that we are dealing with such limited perception. They didn’t even know that they were blind.

Barry Scheck’s Innocence Project has shed a lot of light on the errors that can creep into criminal trials. 75% of the wrongful convictions that they have had overturned using DNA evidence depended at least partly on faulty eyewitness testimony. This research by Chabris and Simons gives an explanation of why all those cases got the wrong result. The witnesses might not have been lying. They might have missed the gorilla in the room and not even realized it.

Here is the video that they showed. Can you believe that they missed the gorilla?

Do honest people cheat?

I'm a victim of life's circumstances
I was raised around barrooms,
Friday night dances
Singin' them old country songs
Half the time endin' up someplace I don't belong

- Delbert McClinton, "Victim of Life's Circumstances"

In criminal law, we punish people because we believe that they made a bad choice. They could have chosen something good, but instead they chose something wrong or forbidden. Similarly, one of the principal purposes of the criminal justice system is rehabilitation. Rehabilitative systems try to teach people to make better choices in the future. They try to change the criminal's character and reform her criminal tendencies.

But what if criminality (or honesty) is not a result of a certain type of character? What if people we would normally consider to be "honest people" would commit crimes under the right circumstances? Is there really such a thing as an "honest person?"

There is some disturbing psychological research that indicates that a person's basic character doesn't affect their behavior as much as their circumstances.

In 1928, researchers at Columbia University administered a number of different types of tests to thousands of children. One test was an aptitude test given in two parts. On the first day the students were not given enough time to complete all the answers and were immediately graded. On the second day, the students were given a very similar test with different questions. But they were provided with an answer key and instructed to grade their own tests. As you might expect, a lot of the students cheated.

The surprising result, though, was that some students who cheated on the aptitude tests never cheated on the physical tests. Or they cheated when they had the answer key, but didn't cheat when they did a take-home test. Even more surprising, some students would cheat on a math test, but not on a spelling test. The researchers concluded that most children "will deceive in certain situations but not in others."

Another study by Ann Tenbrunsel, a professor of business at Notre Dame, shows that a person's mind frame as they prepare for a test profoundly influences whether they will cheat. Tenbrunsel administered a test to two sets of subjects and provided them with an opportunity to cheat. But before she gave the test, she asked one group to think about a business decision and the other group to think about an ethical decision. Each group was to make a mental checklist to address the problem. Then, she administered the test with the cheating opportunity. The group that thought about the business decision was much more likely to cheat than the group that thought about the ethical decision. The subjects' moral upbringing did not effect their decision to cheat.

What does this research mean? For one thing, it means that we probably underestimate the effect our environment has on our behavior. Choosing our environment might be one of the most important decisions we can make.

On the other hand, these studies don't necessarily mean that people completely lack the ability to decide for themselves. A significant group of kids didn't cheat in the 1928 study even when they had the opportunity. And a significant group in the Notre Dame study didn't cheat even though they had been primed to think from a business frame of mind.

If we used to think that individual character accounted for 80% or 90% of the good or bad decisions we make, this research might make us lower that percentage. However much our character affects our decisions, it is an important factor. If we are presented with difficult decisions where we can't control our circumstances, we'll be forced to rely on our character. So, while the criminal justice system needs to acknowledge the impact of environment and circumstance on decision-making, it doesn't make sense to throw free-will out the window. It is still an important factor in what we do.