The Matlock Blog

Hiring a Criminal Defense Attorney - Rule of Thumb #3

Know what you're buying.  As a good friend of mine has been known to say, the problem with lawyers is that we don't make anything.  We don't grow crops, we don't build cars, nor do we make ballpoint pens.  We don't make anything.  

This isn't to say we aren't useful.  Don't believe me?  Go ahead and have those three extra drinks on New Year's Eve and you'll find out just how useful a criminal defense attorney can be.  

The criminal defense attorney's usefulness is more akin to a tool.  But with that tool, you should be getting something, right?  There really are three things you are getting when you hire a criminal defense attorney; knowledge, skill, and time.

We are perhaps most analogous to that guy on the street from whom you get directions to someplace you've never been.  We know the correct routes to go, and perhaps more importantly, the routes you don't want to go.  We know how to navigate the system.  This comes in pretty handy, because while everyone might know they want to go from here to there, few people know how to actually do it.

But knowing is only half the battle.  I can tell you the confession you gave might well be inadmissible because it was obtained in violation of Miranda, but it takes skill to make that result a reality.  All attorneys are not created equal.  It's just like any other business.  There are good ones and there are not so good ones.  

The skill you are hiring is being able to take the knowledge and turn it into a result for you, the client.  The result is often different for each client.  In many ways that's good.  After all, what is a win for one client might be a loss for another.  

Of course, it is assumed that every attorney that can find their way to a courthouse can fumble their way through a guilty plea on the first setting.  There isn't really a lot of skill involved in that, and many times, not a lot of knowledge.  (No, you still can't get deferred for a DWI in Texas, and no, you're not probation eligible in federal court with 25 kilos of cocaine and a gun with two prior drug convictions.)

Finally, you're buying the attorney's time.  It takes time to get good results.  Couple this with the inherent time-consuming nature of the criminal justice system, and you're likely in for relatively lengthy journey.  Understand that is part of the process.  If it were up to the attorneys, we would be done with the case sooner.  But it doesn't work that way.  Besides, you really don't want to rush this stuff.  

Remember that when you are looking to hire a criminal defense attorney, you are going to have to spend some money and do some homework in making a decision.  You're attorney will be working to defend you from whatever it is you have allegedly done.  It takes time.  It takes skill.  It takes knowledge.  Realize this is what you are paying for.  If you've done your homework, you should be okay.

If you haven't done your homework, and you're not willing to pay for quality representation, then you probably don't care that much about the result.  But what the hell do I know?

How much is your kid worth?

Juvenile defense has become somewhat of a larger part of my practice than I ever really imagined it would.  Perhaps it is because so few attorneys actually handle juvenile cases, or for another reason that I can't think of.  In any event, I routinely find myself representing juveniles charged in juvenile court of crimes as varied as simple marijuana possession to murder.

There is a sense among criminal defense practitioners that juvenile court is not really criminal defense.  I agree.  In many ways, it's not.  Even though we are generally using the same criminal statutes and analogous procedure rules, there is not always the sense of urgency associated with adult court.  Maybe its the expectation that the kid is going to be placed on probation, except in the more serious of crimes, that devalues the defense of juveniles.

In juvenile court in Tarrant County, it is my understanding that there are fewer and fewer attorneys willing to accept appointed juvenile cases.  Add to that the fact that there seems to be fewer attorneys that handle juvenile cases at all, even if retained, and you find a relatively small pool of attorneys in juvenile court on a daily basis.

The other day, I was at juvenile court trying to get a hearing scheduled for a retained client.  As I stood in the coordinator's office looking at her calendar for the week, I noticed something I found amazing.  Of all the cases set that week, only two cases had retained counsel.  Two.  And the week was full of settings from 8:30 to 4 everyday.  Many of the attorneys listed I did not recognize.

I asked a few people who some of the attorneys were, and I even looked them up on the State Bar website.  (I'm a curious guy, what can I say?)  I was surprised to see most of them were either primarily family law attorneys or attorneys with an average of about 18 months of experience.  Again, during this particular week at least, all but two were appointed.

Of course, juvenile law is not really criminal law because there really isn't a criminal conviction.  Well, that's true, but it doesn't mean that it's not potentially quite serious.  

I can't imagine my son getting in trouble to the extent that would necessitate a trip to juvenile.  But if he did, I don't think I would entrust his future to a newly-minted attorney searching for some court-appointments or a family law attorney that doesn't even handle criminal defense.  

Of course I know that there is nothing wrong with the court-appointed attorneys and that there are many excellent court-appointed attorneys.  I know several at juvenile who, like me, handle appointed cases and are very skilled.  It just strikes me as odd that so many people would simply allow their kid's future to be affected in such a way without hiring an attorney.  Why don't people hire attorneys to defend their kids?  Aren't they important enough?

Hiring a Criminal Defense Attorney - Rule of Thumb #2

Now that you realize you will have to actually spend money, possibly a lot of money, when you hire a defense attorney, how do you go about actually deciding on the one you want.  Well, the easiest way to go about it would be to flip through the yellow pages and look for the flashiest and biggest advertisement under the attorney section.  Call the attorney up and tell her that you don't have time to go to an appointment, but if you could just relay a few "facts" of the case and hire the the attorney over the phone, that would be great.  This is by far the easiest thing to do.

With that said, it is also about the stupidest thing you can do.  For the love of all that is holy, what is the fascination with hiring an attorney, any attorney for that matter, and the yellow pages?  Did I miss the day in law school when they taught the correlation between yellow page listings and actual legal skill?  I wish I had known that because then I wouldn't have studied as hard leaning the little things, like the law, and instead would have just focused on getting the biggest, all-color, pop-up yellow page ad in the phone book.  I mean it must mean I'm successful if I can pay to have a big ad, right?

Of course, I'm not saying that all attorneys that have yellow page ads are incompetent, but their skill has nothing to do with the yellow pages.  You can certainly flip through them to get a feel for what is out there, but here's an idea, do some more research.  As it turns out, there is this new thing out there called the internet.  Google seems to be pretty impressive.  Or Yahoo.  Or MSN Search.  But there is actually a wealth of information out there that is not found in the yellow pages.  Hard to believe, I know, but true nonetheless.

Whatever research you do, talk to different lawyers too.  Don't settle on the first one you see because it is the biggest ad or the highest-ranked website on Google or whatever.  Do some research.  Talk to different attorneys.  Ask questions.  Don't take for granted what the first attorney you spoke to told you.  

Only after you have done a proper amount of research for a defense attorney, can you be confident you will be properly defended.  But if you don't want to take my advice on this, that's fine.  Maybe I'll see you in court one day as you're being escorted into custody because you thought the attorney with the biggest ad or the flashiest brochure was the best just because of the advertisement.  When that happens, tell me I'm wrong then.  I'll be the guy going home to have a beer, and you'll be going to jail.  But what the hell do I know?

Hiring a Criminal Defense Attorney - Rule of Thumb #1

Brian Tannenbaum over at Criminal Defense recently wrote a great book on hiring a criminal defense attorney entitled “The Truth About Hiring a Criminal Defense Lawyer.”  It’s a good read for anyone that is actually doing some research before they make a knee-jerk decision on hiring a criminal defense attorney.

I don’t want to steal any of Brian’s stuff, but I thought I would throw out a few Rules of Thumb about hiring a defense attorney.  With that said, here is my Rule of Thumb Number 1.

As is number one in Brian’s book, and also written about by Mark Bennett recently, is money.  If you are looking for a criminal defense attorney, it’s because you must.  No one hires a defense attorney to plan for the future.  Generally speaking, when you are in the market for a defense attorney, there is a short window of opportunity to defend yourself because the might of the government is coming down upon you.  Keep this mind in your search.

As Mark said, you are in trouble, and you need to realize how much trouble you are indeed in.  Different levels of trouble result in different fees by defense attorneys.  Being charged with a DWI is not the same as Murder obviously, but each has a price tag.  Nowadays, any criminal conviction can severely hamper your future opportunities, whether they be employment-related, federal student loan-related, or driving license-related.  The point is, you are in trouble and you need to realize it is going to cost you to try to stay out of trouble.

The old adage “You get what you pay for” is definitely applicable to hiring a criminal defense attorney.  Of course this doesn’t mean that because someone charges you a high fee that they are necessarily any good.  But the reverse is almost always true;  a lawyer that charges you very little is likely not very good.

Brian makes a great comparison between defense attorneys and stock brokers.  Look at it this way.  Associate money with time in this situation.  The more money you are willing to invest in your defense, the more time you attorney can devote to your defense.  Sure, you can hire the “firm” that mailed you a fancy brochure suggesting your felony can be dismissed for $1500, but think that through.  

If all they charge is $1500, how many do they have to handle to make any money?  Do you want the attorney/ firm that has 400 cases handling yours when they get around to it, or do you want the attorney that can devote the requisite amount of time to your case to ensure the best possible result?  

The bottom line is that there are no free rides when you get in trouble.  It doesn’t matter if you are convinced you are innocent, or you were entrapped (chances are, you weren’t; trust me) or it was just a misunderstanding.  You are now in a system that regularly chews people up and spits them out.  Do you want to make it through in one piece, or do you want the alternative?  

Never hire an attorney because he has the biggest yellow page ad, or the fanciest website, or most importantly, because he is the cheapest.  

Remember, as James Goldsmith said, “If you pay peanuts, you get monkeys.”

Because, in the end, we're all family

Just as with sports I suppose, the legal profession has its rivalries and animosities.  But at the end of the day, win or lose, we know we will see each other on another day, in another court, on another case.  The players come and go, but those of us that do this for a living remain.  Remain to fight another day.

There are prosecutors that I deal with that I don't like.  I know there are prosecutors that don't like me.  And you know what?  I'm fine with that, and I know they are too.  I respect the vast majority of prosecutors I deal with.  In fact, don't tell anyone, but I actually admire many of them.  With apologies to every other prosecutor I have dealt with, I respect one Tarrant County prosecutor more than any other.

In September, 2003 a 16-year-old boy was found shot to death in a construction site in south Fort Worth.  Three days later, a classmate was arrested and charged with his murder in juvenile court.  The firm for which I worked at the time was hired to represent the juvenile client, and as it turned out, that meant I represented the client.

There was some very damning evidence against my client.  There was the gun, and the statement in which my client implicated himself in the shooting.  However, I felt the statement was obtained illegally after my client had asked for a lawyer during the interrogation.  

After a suppression hearing, the court suppressed the statement and the gun.  So did the Second Court of Appeals.  The Texas Supreme Court, in an historic decision (the first time the Court had ever affirmed suppression and only the second time they ever cited Miranda), affirmed the suppression of the statement, but let the gun in.  

After five years of battling in the Texas appellate courts, the case finally came back to the original juvenile trial court.  My client was certified as an adult (I thought incorrectly, but what should I think?) and the case was sent to adult court.  After five years of research, writing, arguing, negotiating, and battling, this case was finally in a position to be resolved.

Five years ago, I don't know where WFAA ABC Channel 8 reporter Craig Civale was, but I know he wasn't here in Texas.  Because of that, I understand that he might know all of the details of this case.  But, since he was a former "investigative reporter," I would think he could do his research.  But I guess that would be asking too much.

This particular case was the first in Texas history in which the State sought a pretrial appeal of a juvenile suppression order.  As is typical with most things that happen for the first time, it was somewhat time-consuming and hard to predict.  It took a while.  Apparently, it didn't happen fast enough for Mr. Civale.

Craig Civale reported a story for WFAA Channel 8 in which he claimed that nobody has really done enough in this case.  I guess five years of arguing the finer points of constitutional confession law throughout Texas appellate courts doesn't mean much to the small-time investigative reporter.  

The bottom line is this "reporter" hung out a Tarrant County prosecutor to dry.  The prosecutor on this case (and I won't say his name because I haven't spoken to him about this, but you can see him in the clip) is the prosecutor I respect the most.  To say that he has been "dragging his feet" in this case is ridiculous.  He, like myself, has had boxes upon boxes of this case in his office for the last five years.  He could easily have passed it on to the next prosecutor out at juvenile to eventually handle after the appellate courts were done with it.  He didn't.

I can't say I dislike the media, because after all, I enjoy seeing myself on TV or reading my name in the paper.  But is it too much to ask that a reporter actually research the issues of a case before he reports that "a murderer could walk free?"  (This was his "concern" when he called me for comment before the story aired.)  

I have a saying that "If I did my job as well as they did their job, I'd be disbarred."  Craig Civale's "investigative" reporting in this case should get him disbarred.  But what the hell do I know?

No Honor Among Cops

I have a client that hired me over a year ago because she felt that her former employer would try to retaliate against her for making claims of improper behavior in the workplace.  So, over the last twelve to fifteen months, I have tried to either curtail any potential criminal charges being filed, or at the very least try to find out exactly where the "investigation" was, so as to advise my client accordingly.

Despite dozens of phone calls to the so-called detective who was supposedly handling the "investigation," I could never get an official, straight answer.  I finally spoke with another detective who assured me the police would have no problem with a "walk-through" to take care of any potential warrant that might issue for my client.

A walk-through is where, when there is an active warrant for someone, the police agree to allow that person to turn themselves in to the local police to take care of the active warrant.  This eliminates the possibility of the client simply being arrested at any time, and it serves to generally control the situation.  This is the scenario that was agreed upon by myself and the particular police department in this case.

Despite the dozens of phone calls, and the constant assurance that my client, a 30-year-old pregnant mother of one who has never been in trouble in her life, I found myself questioning the veracity of the police.  I know.  Shocking.  (After all, it is the police that stopped me not once, not twice but three times because I seemed to be in the wrong neighborhood and they wanted simply to search my car!)  It is certainly no secret that I am not exactly the biggest fan of the police, nor I'm sure, are they my biggest fans.  Oh well.  I'll deal.  

Yesterday, the police arrested my client for an active warrant that had been outstanding for over a month on my client.  That's right.  A warrant that was active for over a month despite being "assured" (which I guess is cop-speak for "lie") that my client would be afforded every opportunity to turn herself in and avoid the embarrassment of being arrested in front of her friends and neighbors.

I suppose I could simply be the cynic and say this is what I get for trusting the police.  I mean, after all, these are the same people that have no problem planting evidence and anally raping suspects.  So, today, I got the opportunity to explain to my client why having me as her attorney was not a complete waste of time and money.

So now that the police have had their fun sending seven officers in four patrol cars to arrest a 30-year-old pregnant woman, the scene shifts to the courtroom.  There are no targets to shoot at, there are no tasers to prepare, and there are no batons to lube up.  Welcome to the courtroom, where if you don't know what you're doing, you can get hurt.

I look forward to round two, especially with the "detecive" who is supposedly investigating this case.  I wonder, with this in mind, if the police will think twice about the way they behaved in this case.  

I doubt it.  By what I've seen, I'd be surprised if the cops bothered to think once. 

The BCS debacle

Just as an aside from the normal conversation on this blog.  Specifically, the detailed scholarly conversation about all things legal-related, as well as the witty opinion of all things.  Seriously, all things. 

While I don't know that I favor the playoff scenario offered by president-elect Obama, I do think we need to slightly modify the current BCS situation.  (By the way, can someone tell the president-elect that "president-elect" is a hyphenated word so that he can change his podium lectern sign??)

Can someone please explain to me how a team can beat a number one ranked team, go 11-1 in their conference (the toughest conference in the nation, by the way; sorry SEC), be ranked number 8 in the final BCS poll, and not be in a BCS bowl?!?  Is there any reason for that other than outdated BCS rules that prohibit three teams from the same conference being in the BCS?  

Well, since my beloved Red Raiders will apparently be playing in the Cotton Bowl against Ole Miss, I'll just look forward to going to Dallas for the bowl game instead of Miami or Phoenix.  Here's hoping for two things:  first that Texas beats the crap out of Ohio State (which has two losses and is ranked two spots lower than Tech in the BCS) and that Florida beats the hell out of Oklahoma!   

The economics of criminal defense

The economy is slumping.  We just learned that we are in a recession, and in fact, we have been for a while now.  People are out of work.  Plants are closing and companies are folding.  (Hell, Circuit City opened a new store and then closed it within the same month a few miles from my house.)  The future is bleak.  

What does this have to do with criminal defense?  Potentially, quite a lot.  There is a general feeling that when times are hard economically, crime rates go up.  Generally, from a purely economic perspective, that would seem like a good thing for the criminal defense practitioner.  But when the economy is really bad, doesn't that mean people have no money?  If they have no money, doesn't that mean they can't afford quality representation?  Yes, and no.

Economies are cyclical.  That is, the good times and the bad times come and go.  Being a criminal defendant is hopefully not cyclical.  Hopefully, being a criminal defendant is only going to last long enough to either clear your name or resolve your case in a way you can live with.  However, if you choose your representation based solely on economics, you might well find yourself in another situation.  Incarcerated.  Perhaps for a very, very long time.  

This can be especially true around the holidays.  Too many times, I get a phone call from someone after the holidays that has put off hiring an attorney until after the holidays so they can use their pre-holiday money for presents.  I certainly applaud the effort to ensure the kids or significant other have a memorable holiday season, but what's more important?  A new Wii for the kids, or seeing the kids for Christmas during the next twenty years?

Too many times I see people that wait too long to hire an attorney.  For whatever the reason (many times it's money) the person puts their future attorney in a bind because the person doesn't give their attorney the time he or she needs to successfully defend them.  Mounting a defense to a criminal charge takes time.  It takes effort.  Waiting until the last possible moment to begin the defense is really not the best move.

There are times in life when choices have to be made.  Generally, those are not the best times in our lives.  Being a criminal defendant in a "recession" is one of those times.  Making the wrong decision at this time, can result in potentially life-altering consequences.  

It is never a good decision to postpone a potentially life-altering decision for economic reasons.  If you are charged with a crime,  get representation early.  Don't worry about this holiday season or this recession.  After all, if you screw up this decision, you won't have to worry about the next holiday season or recession at all.  

But what the hell do I know?

Courthouse fashion...or not.

In case you missed it, I haven't really had a lot to write about lately.  Maybe it's the holidays.  Maybe it was my trip to Oregon.  Maybe I've been too busy at work.  Whatever the reason, I just have not had a lot I wanted to talk about.  But I feel like I am cheating all seven of you that read this.  I'm afraid I will be forgotten.  We can't have that.

They say you should write what you know.  While I certainly don't consider myself an expert on fashion, I have generally been pretty knowledgeable about how to dress well for most of my life.  I blame my childhood.  And having either a GQ or Brook Brothers catalog subscription for most of my life.  In any event, I feel quite comfortable commenting on what I think people, especially lawyers, should or should not wear.  So, since Mark Bennett is making rules, so too shall I.

Rule No. 1:  You're a lawyer.  Try dressing the part.  I know this is Fort Worth, but seriously.  Is there another city in the county of the size of Fort Worth where a lawyer would actually walk into court to conduct court business in jeans?  You don't have to wear a Savile Row bespoke suit every day.  But you're a lawyer.  Dress like one.

Rule No. 2:  Shoes are critical.  All too often I see lawyers at the courthouse who actually take the time to put on a suit, but make a critical mistake about their shoes.  There are actually two mistakes in this rule that can be made.  The first is to wear boots with a suit.  I know this is Cowtown (I love you man, but you know who I'm talking to), and I know there are countless others in Texas that do it (yeah, I'm talking to you Bennett), but just because all the other kids are doing it doesn't make it right.  It's wrong.  On a moral level, wrong.  The other part of the shoe rule is that your shoes must be clean and polished.  If you feel the need to wear boots, at least wear nice ones, and not the ones you wore while cleaning out the horse stall.  

Rule No. 3:  Patterns.  I will happily admit fashion is really about individual style and feeling good about yourself.  (So you would think this thinking would allow you to wear boots with a suit, but you would be wrong.)  But some people out there are going to cause me to have a seizure.  The bold pinstripe suite with the checkered shirt and the horizontal stripe tie is too much.  The rule for patterns nowadays is that you can pretty much wear any pattern with any other pattern.  But remember the rule of 3.  Of the three items a man wears (suit, shirt, and tie) one of them must always be a solid.  

Rule No. 4:  For the lady lawyers.  Don't be afraid to put away the pant suits.  This is not a sexist thing to say, but just a reality.  I'm not saying wear a skirt or dress everyday, but sooner or later you will start to look like Hilary Clinton.  And not in a good way.  Is there a good way?

Rule No. 5:  Knowing how to properly tie a tie is one of life's ultimate pursuits.  Learn how.  Every tie should always have a dimple.  Preferably in the middle!.  As for the basics, the little part of the tie should not hang lower than the big part.  Also, the tie knot is very important.  Consider this:

THE SIZE OF A BALL BEARING: "In my spare time, I snort coke and jam with the Strokes."

THE SIZE OF A PINBALL: "I'll be on the Vineyard for the entire month of August. You should come out."

THE SIZE OF A GOLF BALL: "The reason you hate me is that pretty much everything I do, I do perfectly. Like tying this tie."

THE SIZE OF A TENNIS BALL: "Yo, Vinny, I'm starving. Let's grab a slice on the way to the reception."

I hope this is helpful.  If not, well, you can't say I didn't try.  

Bailout?

This is an interesting story.  Tarrant County District Clerk Thomas Wilder is being sued for allegedly eliminating the jobs of Peter Hinojosa who ran against Wilder in the Republican primary with the help of Bobby Cook.  The lawsuit is against both Wilder and Tarrant County.  But that's not really the story.

The real story is what Tarrant County is paying to defend Wilder.  In Hinojosa's original complaint, Wilder is sued in his official capacity as District Clerk.  However, on June 18, 2008, Hinojosa filed a Motion to Amend Original Complaint seeking to drop the allegations against Wilder in his official capacity and proceed against him solely as a private individual.

Tarrant County Commissioners originally authorized $50,000 to pay his attorney, Henry Robinson of Fort Worth's Kelly, Hart & Hallman, to defend him.  However, that is apparently not enough.  The Commissioners have now authorized another $50,000 to defend Wilder.  The money is coming from the professional liability fund of the county, according to Wilder.

Of course, Wilder is being sued in his individual capacity.  Not as the District Clerk.  Despite that, the citizens of Tarrant County are paying to defend Wilder.

I don't know Wilder, but being relatively active within the Republican Party, I have heard stories of just how much of a ruthless political boss Wilder is.  (I did however see Mr. Wilder berate an election officer during early voting this year for no reason whatsoever, all the while throwing his name around as though he is somebody.)  Of course, I don't know anything about the case, so I don't want to say it is or isn't likely Wilder did what he's accused of doing.  

I'm just glad we all get to pay $100,000 to defend Wilder for being an ass while those of us that represent indigent criminal defendants are happy to make a couple of hundred bucks when getting murder cases dismissed.