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?

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.”

New Federal Sentencing Guidelines for Crack

Yesterday, the new rules for determining the base offense levels in crack cases under Section 2D1.1 of the Federal Sentencing Guidelines went into effect. While many people, like Jamie Spencer, are discussing whether those new rules should be retroactive to cases that occurred before November 1st, I thought it would be helpful to discuss just how the new rules work, and what to expect. Below is a memorandum produced to deal with these changes.

I. Determining Base Offense Level in Offenses Involving Crack Only

The Commission amended the Drug Quantity Table in § 2D1.1 so that crack quantities triggering the five- and ten-year mandatory minimums are assigned base offense levels two levels lower than before. The base offense levels for these quantities now correspond to guideline ranges that include (rather than exceed) the mandatory minimum. The Commission similarly adjusted the drug threshold quantities above, between, and below the mandatory minimum thresholds, with the net result being that for crack offenses, base offense levels across the board are two levels lower than they would have been before the amendment. See 72 Fed. Reg. 28,558, 28,571-73; U.S.S.G. App. C, Supp. Amend. 706; U.S.S.G. § 2D1.1 (2007).

For example, under the old guideline, at least 5 grams but less than 20 grams of crack was assigned a base offense level of 26 and a minimum guideline range of 63 to 78 months, which exceeded the mandatory minimum of five years by at least three months. Now, the same quantity of crack is assigned to base offense level 24, which corresponds to a minimum advisory guideline range (51 to 63 months) that includes the mandatory minimum. Likewise, the base offense level assigned to at least 50 grams but less than 150 grams of crack has been adjusted downward to offense level 30, which corresponds to a minimum advisory guideline range of 97 to 121 months. The remaining quantities above, between, and below these quantities have been similarly adjusted downward. Here is a reader-friendly comparison of the old and new base offense levels:

Quantity BOL under Former § 2D1.1 BOL under Amended § 2D1.1
4.5 KG or more 38 38
1.5 KG to < 4.5 KG 38 36
500 G to < 1.5 KG 36 34
150 G to < 500 G 34 32
50 G to < 150 G 32 30
35 G to < 50 G 30 28

Quantity BOL under Former § 2D1.1 BOL under Amended § 2D1.1
20 G to < 35 G 28 26
5 G to < 20 G 26 24
4 G to < 5 G 24 22
3 G to < 4 G 22 20
2G to < 3 G 20 18
1G to < 2 18 16
500 MG to < 1 G 16 14
250 MG < 500 MG 14 12
< 250 MG 12 12

For offenses involving crack only, applying the amendment is easy: simply determine the base offense level in the new Drug Quantity Table in § 2D1.1 that corresponds to the quantity of crack your client has been proven responsible for. For quantities between 4.5 KG and 500 MG, the result will be two levels lower than under the old guideline. For quantities outside that range, there is no change in the base offense
level.

ALERT: By recalibrating the crack cocaine quantity thresholds in this manner, the Commission has created a system in which the ratio of crack to powder cocaine varies wildly from one offense level to the next. Even worse, the ratio is often more severe for low-level players than it is for bigger dealers. Below are the new ratios:
LEVEL RATIO
38 33:1
36 33:1
34 30:1
32 33:1
30 70:1
28 57:1
26 25:1
24 80:1
22 75:1
20 67:1
lower 50:1

As the guidelines are only advisory, if you find yourself looking at one of the higher ratios, argue that the court should not assign a ratio any higher than the lowest ratio of the bunch, which is 25 to 1. Ask the judge to make the independent assessment – under 18 U.S.C. § 3553(a) and pursuant to the district court’s duty under Booker and Rita – that an advisory guideline range based on a higher ratio reflects “unsound judgment” on the part of the Commission and should not be followed. See Rita v. United States, 127 S. Ct. 2465, 2468 (2007) (district court may conclude that the guideline sentence fails to reflect § 3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate “regardless.”); id. at 2463

II. Determining Base Offense Level in Offenses Involving Crack and Other Controlled Substances

The Commission also modified the mechanism for determining the base offense level in offenses involving crack and other controlled substances. The mechanism is set forth in new subdivision (D) of Application Note 10. See U.S.S.G. § 2D1.1 cmt. n.10(D) (2007). Although this determination is a bit more complicated than for offenses involving crack only, it is really not very different from the old method of determining the base offense level for combined substances, except that there is now a special marijuana equivalency table for the quantity of crack involved, which is derived from the new ratios between crack and marijuana quantities at each offense level. Here’s how it works:

First, determine the base offense level for the quantity of crack involved in the case. Find the assigned marijuana equivalency for the crack offense level in the special table in that subdivision. See id. cmt. n.10(D)(i)(II). Convert the crack quantity to its marijuana equivalency under the special table, which is reproduced here:

Base Offense Level Marihuana Equivalency
38 6.7 kg of marihuana per g of cocaine base
36 6.7 kg of marihuana per g of cocaine base
34 6 kg of marihuana per g of cocaine base
32 6.7 kg of marihuana per g of cocaine base
30 14 kg of marihuana per g of cocaine base
28 11.4 kg of marihuana per g of cocaine base
26 5 kg of marihuana per g of cocaine base
24 16 kg of marihuana per g of cocaine base
22 15 kg of marihuana per g of cocaine base
20 13.3 kg of marihuana per g of cocaine base
18 10 kg of marihuana per g of cocaine base
16 10 kg of marihuana per g of cocaine base
14 10 kg of marihuana per g of cocaine base
12 10 kg of marihuana per g of cocaine base

For example, 200 G of crack now corresponds to base offense level 32 in the Drug Quantity Table. Under the special marijuana equivalency table above, each gram of presumption is not binding, does not place any burden of persuasion or proof on either party, and does not reflect greater deference to the Commission’s factfinding than to that of the district court, but merely “reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case,” which is a “double determination”). For a more thorough discussion of how Rita can be used to support this argument, see Amy Baron-Evans & Dan Kaplan, What is Lovely ( and Not so Lovely) about Rita: Implications for Gall, Kimbrough, and Future Cases (September 12, 2007), available at http://www.fd.org/pdf_lib/Rita_Memo_9.12.07.pdf.

Second, determine the combined marijuana equivalency for the other controlled substances involved in the offense by using the regular Drug Equivalency Table (now located in subdivision (E) of Application Note 10) and by following the instructions in subdivision (B) of note 10. Basically, for each substance, convert each drug to its marijuana equivalent under the Drug Equivalency Table, add the quantities, and find the
corresponding offense level for the total quantity in the Drug Quantity Table. See U.S.S.G. § 2D1.1 cmt. n.10(B).

For example, say that the case involving 200 G of crack referred to above also involved 300 G of powder cocaine and 750 G of methamphetamine. Under the regular Drug Equivalency Table, the cocaine converts to 60 KG of marijuana, and the methamphetamine converts to 1500 KG of marijuana.

Third, add the marijuana equivalencies for all three drugs together and find the quantity in the Drug Quantity Table to obtain the combined base offense level. As calculated above, the crack converts to 1340 KG of marijuana under the special equivalency table in subdivision (D) of Application Note 10; the cocaine converts to 600 KG of marijuana under the regular table in subdivision (E); and the methamphetamine converts to 1500 KG of marijuana under the regular table in subdivision (E). Adding these marijuana equivalencies results in a combined quantity of 3440 KG of marijuana (1340 KG + 60 KG + 1500 KG = 2900 KG), which corresponds to a combined base offense level of 32 for all three controlled substances involved in the offense.

ALERT: When this new mechanism was first promulgated May 2007, we quickly realized that the method for arriving at the appropriate offense level to which varying marijuana equivalencies were applied created the anomaly that an offense involving crack and other drugs could be assigned a higher base offense level than
another offense involving significantly more crack and other drugs. In September 2007, the Commission amended subdivision (D) so that the special table applies only to determine the marijuana equivalency for crack, with the other equivalencies being determined under the regular table in subdivision (E), as described above. This amended method is simpler to apply (and less confusing), and also seems to produce fewer anomalies. However, it appears that the mechanism will still produce unfair results in some cases, again due to the varying marijuana equivalencies at each crack offense level. For example, an offense involving a quantity of crack and a quantity of another controlled substance could be assigned a base offense level higher than an offense involving the same total quantity of crack alone. Following the procedures outlined in subdivision (D), an offense involving 12 grams of crack and 6 grams of powder is
assigned a combined base offense level of 26. Here’s how:

(1) 12 G crack = BOL 24 in the DQT. Multiply by 16 KG mj per g of crack under subdivision (D) = 192 KG mj
(2) 6 G powder cocaine. Multiply by 200 G mj per g of powder under subdivision (B) = 1.2 KG mj
(3) Add 192 KG + 1.2 KG = 193.2 KG mj, which is assigned a BOL 26 in the DQT.

In contrast, had the offense involved 18 grams of crack only, the assigned base offense level would only be 24 under the Drug Quantity Table. If you come across such a situation or something similar, you may want to point out to the judge that these amendments are intended as only “interim” and incomplete fixes to the problems associated with the 100-to-1 ratio, and as such, are not perfect. Again, ask the judge to make the independent assessment – under 18 U.S.C. § 3553(a) and pursuant to the district court’s duty under Booker and Rita – that it need not follow an advisory guideline range that is higher for a combination of crack and another, less severely punished drug than it would be for crack alone.5 4 U.S.S.G App. C, Supp., Amend. 706 (Reason for Amend.). 5 See Rita, 127 S. Ct. at 2463, 2465, 2468.

If anyone would like a copy of the memo, just email me, I would be happy to pass it along. Many thanks to Jason Hawkins of the of Federal Public Defender in Dallas and Jennifer Niles Coffin of the Federal Public Defender in Nashville for putting this memo together.

Statute of the Day: Failure to ID

Continuing in our award-winning series of bringing the fine readers of The Matlock Blog (all four of you) current Texas criminal statutes of interest, we provide for your reading pleasure Section 38.02 of the Texas Penal Code, Failure to ID. It seems this is a particular topic of interest among internet searchers.

§ 38.02. FAILURE TO IDENTIFY.
(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
(c) Except as provided by Subsections (d) and (e), an offense under this section is:
(1) a Class C misdemeanor if the offense is committed under Subsection (a); or
(2) a Class B misdemeanor if the offense is committed under Subsection (b).
(d) If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is:
(1) a Class B misdemeanor if the offense is committed under Subsection (a); or
(2) a Class A misdemeanor if the offense is committed under Subsection (b).
(e) If conduct that constitutes an offense under this section also constitutes an offense under Section 106.07, Alcoholic Beverage Code, the actor may be prosecuted only under Section 106.07.

You will notice there are two different ways to commit this crime. The difference depends upon whether the person has actually been arrested. If you have been arrested, you have to provide your current information, and it has to be accurate. However, if you have not been arrested, you can refuse to provide any information. But if you provide incorrect information before you've been arrested, you've violated 38.02. Also keep in mind the different penalty ranges for this crime. They are all misdemeanors, but they range from a Class C (maximum of $500 fine) to a Class A (up to 1 year in county jail and up to a $4000 fine).

Kids these days

So it appears that the Texas Legislature's "answer" to the recent Texas Youth Commission scandal might not be quite as air-tight as once thought. I mean who could imagine the legislature not doing something right? Don't they do everything right? By the way, I love that public school funding bill. Oh wait. I forgot. But anyway, on to TYC.

As you might know, the Youth Commission recently went through a bit of a scandal in the way juvenile offenders were being treated in TYC facilities. So in an effort to "protect the kids," those in Austin decided to overhaul essentially the entire Juvenile Justice System. Aside from the complete overreaction (by politicians you say?) it has caused serious problems and a state of absolute confusion to those of us in the juvenile world. Every time I see Judge Jean Boyd of the 323rd District Court here in Fort Worth, she makes the comment that she hopes they're done "fixing" the system. I really like Judge Boyd.

It has long been argued that juvenile justice is about rehabilitation. It's about giving the kids a chance to learn from their mistakes without having the issue be publicly on their record that could potentially ruin their lives. It sounds good. In fact, it has been successfully argued by me to get kids on probation instead of being sent to TYC. Of course in all fairness, it's been argued by prosecutors to get my clients sent to TYC. There has always been two types of "rehabilitation;" the supervised release kind (where the kid is on probation essentially) and the TYC kind (where the kid goes away and "learns" while in custody).

Well, it appears that there is now a much shorter time limit on when that rehabilitation better take hold with a kid. The new bill, Senate Bill 103 forbids the commission from keeping juvenile offenders in custody past their 19th birthday. It used to be age 21. The way the system used to work was that if a kid needed the TYC kind of "rehabilitation" they went to TYC and could potentially be there until age 21. Not so much now. So now it appears that if the TYC "rehabilitation" doesn't "take hold" (not my words, but those of Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association), the kids will get shipped off to adult prisons. The other option is to have the kid released on supervised release; essentially parole.

Apparently this is agitating the prosecutors now as well. You see they apparently feel they now must attempt to have the kid certified as an adult so that the prosecutor doesn't worry about the possibility the kid is given supervised release at age 19. You see when a juvenile is charged with a serious crime, he can be tried as a juvenile and be put through the "rehabilitation" of the juvenile justice system. However, in certain circumstances, the prosecutor can ask the juvenile judge to certify the kid as an adult, which essentially transfers the case to adult court where the kid is treated just as any other adult offender. There isn't really quite the same level of "rehabilitation" in adult court as opposed to juvenile court.

So now we are left with this new law that allows transfers to adult prison at 19, instead of 21. There are a number things that are funny about this. The first that comes to mind is that the legislature believes that by shipping a 19 year old kid to an adult prison in Texas will keep that kid safe from abuse. Yeah, that's a good one. Anyone that is in this business long enough knows that the Texas adult prison system is not exactly a safe haven from abuse. But that's a good idea Mr. Legislator. Hey while your at it, why don't pass a new law that says fire trucks can no longer use water to put out fires, but now will have to use gasoline?

The second issue I though was funny was the prosecutor reaction. The prosecutor's best argument in a disposition hearing for sending a kid to TYC was that they need the rehabilitation. The juvenile justice system is not about punishment; it's about getting these kids the rehabilitation and education they probably didn't get at home. TYC is good. It gives kids a chance. Well, apparently now the prosecutors think TYC is good....to a point. They don't want to run the risk that a kid might only get two or three or fours years of "rehabilitation" at TYC and then be released upon the unsuspecting community. Now the prosecutors feel they must bypass the "rehabilitation" all together and get these kids locked up in adult prisons. Yep. Sounds like a winner. I'm sure in about five years, once that kid and served his adult prison sentence, and that prosecutor has been transferred back into adult court, they will never meet again. After all, it's all about rehabilitation. Right?

The Green Law Office

Green is the new chic. Not the way brown is the new black, or 40 is the new 30, rather it is now considered "cool" to be environmentally friendly. I suppose. Don't get me wrong, I'm pretty sure I have been cool all of my life, but few people would ever call me "Green." I'm not sure you can call me green now, but I am willing to accept that we as individuals can do our own little something in the world to help make it a little better place.

Perhaps nowhere has this been more obvious to me than with my law firm. My firm is admittedly small. That's how I like it. But even I have witnessed what those Enviro-conscious mouthpieces have referred to as a Footprint; the mark left behind on the planet as a result of how we live. As lawyers, we like paper, we love computers, and we can't live without our stuff ready to go at a moment's notice. As it turns out, some of these behaviors have an adverse affect on the environment. It doesn't take a rocket scientist to figure out that if I print off every draft of my brief to make corrections instead of doing them on the computer, I'm killing trees. No secret there. But are there other ways we, as lawyers, can do that little big o' green? Here are some ways to go green, as reported by Macworld Magazine.

1. Catch your Zs - You can save energy, and money, by allowing your computer to go to sleep quickly. This doesn't mean use a screensaver. You want your computer to go to sleep as well as your monitor. According to Apple, my Mac uses 77 percent less energy when it goes to sleep that when it's running at full power.

2. Use a flatpanel display - Flatpanels have almost become the norm, especially with new machines. But if you haven't switched, or you just needed a reason to do so, here's a good reason to switch. The CRT model you're using uses about 75W; a flatpanel uses only 25W.

3. Go paperless - This is the new thing, I think. I love the idea. I'm just trying to figure out exactly how to do it in the everyday practical world. Right now, it's working great in the theoretical world. Paper is the largest source of waste in most offices, with most employees using 50 sheets of paper a day. I am convinced that one day in the near future, all law offices will be completely digital. Until that day comes, try to conserve some paper.

Those are just a few suggestions by Macworld Magazine on how to go green. They seem to apply pretty well to a law office. If we do these things, we can save the world. At least that's what Al Gore thinks, and he's a pretty smart guy I guess. He did invent the internet.

Matlock's Setting

Yes, this is an unusual post topic. However, in the last week, I have received visits from roughly 100 people who have search via Google or Yahoo the terms "Matlock's setting." I assume by the results of the search, that people, somewhere, are searching for the actual setting of the television show "Matlock." Since this blog seems to show up pretty prominently in those searches, I thought I would take a second and help out whomever is trying to find out about the show.

"Matlock" aired from 1986 to 1995. It starred Andy Griffith as Benjamin Matlock, an Atlanta criminal defense attorney. His office was in the Flatiron Building in downtown Atlanta. The following is a synopsis from IMDB.

"Ben Matlock is a Georgia bred, Harvard educated defense attorney. His fee is $100,000 but he's worth every cent of it as he defends his clients not only in Atlanta but all over the country. He is cantankerous and gruff and often uses colorful language, but beneath it all he has a heart of gold. He is assisted in his work by his daughters Charlene and Leanne (who are also attorneys) and his investigators Tyler Hudson, Conrad McMasters and Cliff Lewis, who happens to be the son of Ben's boyhood friend/rival Billy Lewis. Ben's girlfriend is associate D.A. Julie March and his contact on the Atlanta police is Lt. Bob Brooks."

I hope this answers someone's questions about this great show. And no, he is not my grandfather.

But they didn't read me my rights

Many times when I am meeting with a potential client, they will say something like "They didn't read me my rights. Will they dismiss the case?" The short answer I give them is "Probably not." Most people assume that before anyone can be arrested or charged with a criminal offense, they have to be read their rights. Most people don't really know what those rights are, but they assume since the cops on TV do it, their real life counterparts should as well. In reality, the police can detain, arrest, and charge you with a crime and never read your rights to you.

The "rights" most people are referring to are what are collectively known as one's Miranda Rights. They stem from a U.S. Supreme Court case (and a bunch of later cases) that basically said before a criminal suspect can be interrogated while in custody, the police have to advise the suspect of their constitutional rights to be silent, not answer any questions, and to have an attorney present, whether retained or appointed. So the bottom line is you have to keep two words in mind: custodial interrogation.

Before the police must read a suspect his/ her rights, the suspect must be subject to custodial interrogation. What is that? Well first off, the person must be in custody. No, that doesn't mean you have to be in jail. No, it doesn't mean you have to be in the back of the police car or in an interrogation room. In fact, you don't even necessarily have to have been arrested. The essential question for the purposes of custody is whether you (or the standard reasonable person) felt free to leave. Could you have just walked away from the police? Did you feel like you had to stay where you were because of police authority? If yes, and it was reasonable to think so, you could well be in custody for Miranda purposes.

The next question is were you interrogated. Again, this doesn't mean you were subject to Gitmo-like....um...questioning. The easy way to look at it is did the police do or say anything to you that would reasonably be likely to get you to incriminate yourself? It actually doesn't have to be direct questioning. It's hard to generalize this, but basically if police tried to get you to talk about the crime, you were probably interrogated.

But this isn't the end of the line for Miranda. You see, you have to make sure that if you are subject to custodial interrogation that you invoke your rights. It doesn't happen automatically. You have to say you want an attorney. The following is an example of how you can effectively do this.

Cop: Did you know John Doe?
You: I want an attorney.
Cop: Did you and John have an argument?
You: I want an attorney.
Cop: I'm sure if you tell me what happened, I can talk to the D.A. on your behalf.
You: I want an attorney.
Cop: I can't help you if you don't talk to me. Don't be uncooperative.
You: I want an attorney.

I think you probably get the picture. The point is, you have to make it very clear to them (I mean they are cops after all). And another thing. Don't ask for someone else. Don't ask for your mom or your dad or your sister or your dog or your friend or your probation officer. You want your attorney. When you say that, the interview has to stop until you've had a chance to speak with the attorney. This is true even if you don't have an attorney already. Also, you can waive this, so be careful. If you tell them you want an attorney, and the interview stops, they can start questioning you again if you start talking to them about the case again before you've spoken to your attorney. Be careful. Actually, just be quiet.

If you were arrested, and the police want to question you about the crime, they have to advise you of your rights. If they don't, and they still question you, it might be possible to exclude that evidence. The safest course of action when you are arrested and questioned is simply to say "I want an attorney." These may be the four words that can make or break your case. Remember them and use them!

Bennettarian Karma?

So for the three of you that have been following Mark Bennett and I as we have jabbed one another on our views of criminal justice, here is an interesting, and some might say karmic twist. This morning, as my wife and son are out of town, I decided some home improvement jobs needed to be completed. I jumped in my car and drove to the local Lowe's Home Improvement Store. On my way back home, apparently I was speeding. Not at all surprising if you know how I drive. But the thing about me is I tend to look very different during the week versus the weekend. During the week, I am all buttoned up (as I'm sure you might expect). But the weekends I am, well, not so much. Weekends find me in shorts, t-shirts, flip-flops and my Tigers hat on backwards. I look like a college kid in fact. I have actually run into judges in front of whom I practice regularly that have not recognized me at first. I tell you this because this morning, I was the victim of profiling.

As I was leaving Lowe's, I got stuck in the wrong lane and had to take the long way back to our house. Not a big deal really. But I don't usually go to this part of town, so I was a little confused on which street went where. As I drove along a certain road, I realized I missed yet another turn. So I tried to turn down a street to double-back. The street I turned on is a very nice street. But apparently my speed was excessive and an officer decided to pull me over. Of course, I know that is not profiling. It's the next part.

As the officer approached my car, he saw me fiddling with my iPhone, and rummaging through my center console. My hat was turned around backwards and I had my sunglasses on. My windows were down and the sunroofs were open, and my music was perhaps a little loud. (But hey, my windows were open and it was Lyle Lovett for crying out loud!) After he returned with my license and insurance, he asked me to get out of the car. A little extreme I thought for only 14 miles over the limit. (Yeah, I know.) He then began to ask me what I was doing and where I was going and where I was coming from.

I will admit, I am easily annoyed with traffic cops. It's not because of any distrust of the government, it's just that, well, you know what? Sometimes I'm in a hurry. So these questions began to irritate me, and I am reasonably certain that my tone of voice and body language weren't helping me here. At that point, another officer arrived. Great. Double the pleasure.

So as officer number one is doing his best Spanish Inquisition impersonation, officer two decides to look into my car. Now of course the windows are down, so he starts to actually peer into my car by sticking his head in my windows. This catches my attention, and I ask him what it is he's looking for. He then asks my what all the bags are full of. Now anyone that has gone to Lowe's knows their bags are see through and they are emblazoned with the words "LOWE'S HOME IMPROVEMENT STORE" on them. I don't know what the minimum educational requirements for the academy are, but seriously. But that's not the best part. Officer number one, the Spanish Inquisitor, asks the question we criminal defense attorneys all know too well. "Do you mind if we take a look in your car?"

Now this happens to me with too much frequency. This is in fact the third time in the last three years that I have been stopped for a routine traffic issue, and then asked if they can search my car. The other two times were virtually the reverse of this situation. In those instances, it was during the week, so I would have been dressed as usual...Sports coat, bowtie,...no hat. But those times were when I was driving through a less than stellar part of our fair city. Both times I refused of course. Both times I was given a ticket. I should slow down.

This time, I couldn't believe it was happening again. I asked why he wanted to search my car. What was he hoping to find? His reasons were as follows: 1. I made furtive movements when pulled over, 2. I seemed out of place, 3. I had bags of materials that seemed suspicious in my vehicle. Ok, hold on. I'm not sure I even heard the phrase "furtive movements" until law school. And on any given day, such as today, I'm not entirely sure what that means other than trying to unhook your iPhone earpiece. Secondly, out of place? I was in a nice part of town in a nice car (at least I like it). How out of place is a young-looking (I still get carded despite graduating college a decade ago, and no I'm not Doogie Howser), white guy in a predominantly white area of town? And my suspicious cargo? Some painting supplies, some nails, and some spackle! And you wouldn't have to search my car to figure that out because, again, the BAGS ARE CLEAR!!! And another thing, who talks like that? Vehicle. Only cops I think. So I refused my consent to search. I got my ticket.

As I got home, I figured this was some type of karmic retribution for my earlier posts and for disagreeing with Mark Bennett. I'm not sure how, but I feel certain Bennett had something to do with this. So ok Mark, I give up. Tell the cops to stop profiling me!