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  #26  
Old 01-18-2018, 11:26 PM
Minor activist Minor activist is offline
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Well, now yourself has me curious.

Could you, would you, continue to extend professional courtesy to prosecutors who commit spectacular Brady violations (the George Gage case), or suborn perjury from jailhouse informants (Orange County), or who -- well, you've read Innocence Project reports.

Could someone committed to justice go out for barbecues with the likes of Ken Anderson, instead of cold-shouldering him or better yet working tirelessly to get him disbarred?

Thing is, I'm remembering what a criminal attorney told me once about how rocking the boat too much could prevent smooth resolution of future cases.

Present company excepted on that. Yourself, something tells me that you would rock a boat with delight.
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  #27  
Old 01-18-2018, 11:48 PM
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Look, a jury or a judge in a bench trial does not declare a person innocent. They state merely that the State has not met its burden so there can be no finding of guilt. Not guilty is a much lower threshold than innocence.

Think of OJ Simpson and his murder trial - he wasn't found innocent. He was found not guilty. At a later civil trial, he was found liable in the deaths of Ron Goldman and his wife. Reconcile that one - how can somebody be liable but not guilty? Simple - they are two very different standards of proof.

A defendant goes before a jury that believes the person innocent until proven guilty. It is then up to the state to prove each element beyond a reasonable doubt. Again, the Alford plea exists so that a defendant can maintain his innocence despite enough evidence, or the belief that there is enough evidence to find guilt. Not guilty is not the same as innocence, and innocence has nothing to do with guilt.

Sorry you had such a miserable experience, but the elements of a case and the execution of justice under the current system weighs evidence. Evidence of guilt. Juries and judges are asked to find that the state met its burden, and therefor the person is guilty, or the state did not meet its burden, and therefor the person is not guilty - it's whether the state did its job in presenting evidence.

Now, if you want me to disparage you for your profession and the quality of your character simply because of your profession, we can go there. Did my doctors care about the quality of my life when they decided to try to rescue my mangled leg? No. Meant the world to me, and 8 weeks in the hospital and rehab, and an eventual amputation, plus the infection problems - I had to live with all of that. Did they have an appreciation of what it meant on a personal level? No. I understand from that perspective of what it's like to go through what can feel like a meat grinder, but that doesn't mean that all members of the profession are duplicitous, that we should hate everybody on the opposite side of the aisle, and that things don't actually affect us. Such assumptions are contrary to my experiences, and the experiences of the vast majority of attorneys I've dealt with in my career.

Whomever wants to make distinctions between careers to make it out that attorneys are different in terms of how they conduct themselves professionally, and whether or not they can like each other - that's bogus. I have a friend who is a judge. We've known each other since first grade. I don't agree with all of his rulings and he thinks I'm overly emotionally involved when I'm at trial, but we've known each other since first grade. I have friends who were in my study group in law school who now sit on the opposite side of the aisle. We're supposed to be enemies because of this? And when a state,s attorney leaves the office and becomes a private defense attorney, I'm supposed to open my arms and embrace him even though I thought he did shoddy work as a prosecutor? Or how about the guy who was a police officer, detective level, who went to law school and now runs a PD department - are my sentiments about him supposed to switch suddenly because he's no longer a cop and is working for a small county as the PD? The situation is not static. We move about, changing law firms, forming new firms, going public, going private, becoming judges, leaving the judiciary, etc, etc, etc. these changes in the nature of a person's profession don't change how we feel about each other and whether we can golf together, or play cards, or grill a steak at a bar meeting. We even socialize with civil attorneys - go figure. Heck, as a law student, I umpired a softball game where the Florida Association of Women Lawyers played the area judiciary. It wasn't the prosecutors v. The public defender's (though there are those games as well in some areas), and you don't get put out of the FAWL because you are a defense attorney. Nobody cares and you are expected to be professional.

Treat people like enemies and you are going to get a completely different response than if you treat them like human beings. Ano it's going to color your perception of every interaction in a negative way.
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  #28  
Old 01-18-2018, 11:58 PM
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Well, now yourself has me curious.

Could you, would you, continue to extend professional courtesy to prosecutors who commit spectacular Brady violations (the George Gage case), or suborn perjury from jailhouse informants (Orange County), or who -- well, you've read Innocence Project reports.

Could someone committed to justice go out for barbecues with the likes of Ken Anderson, instead of cold-shouldering him or better yet working tirelessly to get him disbarred?

Thing is, I'm remembering what a criminal attorney told me once about how rocking the boat too much could prevent smooth resolution of future cases.

Present company excepted on that. Yourself, something tells me that you would rock a boat with delight.
Okay, there was a State's Attorney in my primary county who was a complete ass. He would have asked for the death penalty for a parking ticket if he could have gotten away with it. He was sanctioned by the bar for improprieties in trial - you know the kind of asshat who thinks that getting the win is the same as justice. Here's what happened to him:

Nobody signed up for his 4-some.

When he was up for re-election, the bar put up two candidates to run against him, one in his party, and one in the opposing party. the two who ran against him were on friendly terms with each other. The one in his party defeated the asshat at the primary, leading to a very cordial actual election.

The state eventually disbarred the asshat, though he wasn't our problem by then.

Here's the question I have for you: do you like everybody you work with? If a guy in your office was accused of a heinous crime, would you buy a sheetcake for his birthday? And then sing, "Happy birthday" to him? If you found out that the guy who works next to you was a member of the KKK, what would you do? Would you still do your job? Would you stand away from him and refuse to make small talk with him at the office Christmas party? Would you wait and allow the business to terminate him according to their standards and practices, right down to hearings, or would you quit, refuse to be in the same room with him, and hinder the ability of the business to do what it's supposed to do - its business, including managing its employment practices and adhere to its employment policies?

You don't have to like a person to be professional with them. At the same time, just because somebody works across the aisle from you doesn't mean that person is a bad person.
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  #29  
Old 01-19-2018, 11:14 AM
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Originally Posted by Minor activist View Post
Well, now yourself has me curious.

Could you, would you, continue to extend professional courtesy to prosecutors who commit spectacular Brady violations (the George Gage case), or suborn perjury from jailhouse informants (Orange County), or who -- well, you've read Innocence Project reports.

Could someone committed to justice go out for barbecues with the likes of Ken Anderson, instead of cold-shouldering him or better yet working tirelessly to get him disbarred?

Thing is, I'm remembering what a criminal attorney told me once about how rocking the boat too much could prevent smooth resolution of future cases.

Present company excepted on that. Yourself, something tells me that you would rock a boat with delight.
This makes it appear that prosecutors commit these sort of violations as a matter of course. Most prosecutors are not knowingly or intentionally out to violate someone's constitutional rights or otherwise out to hang anyone they can find. A good defense attorney would make the appropriate motions to the court about these issues - based on facts, not assumptions. And a judge who wishes to uphold the hold and not have cases turned over on appeal would make the appropriate rulings on those motions to protect the client's rights. The situations you present do happen, but are the extreme cases that fall completely outside the norm.

I think when it comes to whether a defense attorney wants to "rock the boat" comes down more often to whether he or she as cause to "rock the boat". All attorneys are held to court rules, statutes, rules of evidence, and rules of professional conduct. You can pay a lawyer $100,000, but chances are good (if they wish to remain a licensed attorney) that they are not going to make an argument to the court contrary to those rules - regardless of how much the client may wish for that argument to be made or what sort of salesmanship the attorney puts on to secure a retainer. Paid attorneys and court appointed attorneys - and prosecutors - all play by the same rules.
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  #30  
Old 01-19-2018, 11:29 AM
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I think the advice to talk to at least three different attorneys is spot on. More importantly, if you are not prepared to pay the additional costs for an investigator, expert witnesses, psych evals, independent testing, ect., in addition to whatever retainer the attorney charges, you might want to reconsider the best use for your money. The retainer secures the attorney's appearance and handling of your case; all that extra stuff - the most important stuff to actually fight a case - is just that, extra. If you're not able or willing to do all that, you may find that you've essentially bought the most expensive and (perhaps) best looking car to get you from Point A to Point B, but now you don't have enough gas money to get there.

The outcome of any criminal case depends more on the facts than anything else. And like Yourself stated, how good of a person you are or how "innocent" you may be, has nothing to do with it.

Case in point: there was a well publicized case here in Michigan a few years ago involving a female tutor and a male student. Her family had a significant amount of money, were well connected business-wise, etc., and hired a well known (and very expensive) trial attorney from the other side of the state. He did all the things I imagine a lot of families hope to see from an attorney: he strolled into the courtroom like he owned the place, presented well to the media, pounded on the table and talked real loud to make an effect on the jury, talked about how she was the real victim in all this - he put on quite the show. All told, the family spent (likely) well over $100,000 in legal fees for her to receive 8 years in prison - which is the likely outcome had she had a court appointed attorney sitting next to her given the particular set of facts in that case.
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  #31  
Old 01-19-2018, 11:39 AM
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They offered more in the way of advice and actual COUNSEL, and at the end of the day, even with some frustrations I had with some of the things they wanted to do, they GOT THE JOB DONE. I was MUCH happier with the end result.
All things being equal, I think what you state here is what most people will find to be the biggest difference between a retained attorney and a court appointed attorney. In most cases, retained attorneys can control their case load better and have the luxury of having a bit more time to devote to each client. And so often times, people come out of the experience feeling like they've been heard and understand, not just rushed through a process. However, whether that feeling translates to actual results is a question of fact that varies as much as people.
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  #32  
Old 01-19-2018, 12:09 PM
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Paid attorneys can be really great if you can afford a full boat of other paid services - psych evals , independent reviews of evidence, blah, blah, blah. Most people cannot afford to hire a couple of psychiatrists, a bullistics expert, an independent autopsy, etc, etc, etc. so, they get a private attorney, but the private attorney is hamstrung by the pocketbook of the person footing the bill. And the bill gets bigger anyway with each piece of evidence that the state produces, whether contested by an independent examiner or not.

Yes, you can appeal to the judge to have your independent psych evaluation, but the judge can and will say no. This is true for the private attorney and for the court appointed attorney. A PD will appeal to the budget of the office to decide whether and how much of an independent investigation you are going to get.

I am producing many of the same motions whether paid privately or by the state. The PI I hire may vary, and I may do a bit myself. The number of depositions I order will vary, along with the number of transcripts.

Will I be ready to take something to trial? No matter who's footing the bill, I want to take it to trial. I love trial work. Then again, I know private attorneys who plead everything out because they hate trial work. I know private attorneys who vomit before every court appearance. I know private attorneys and PDs who are having trouble with their lives and shouldn't be going to trial with anybody, like the fellow a couple of years ago who had a daughter born prematurely and as a result spent four months in the NICU when not in court.
I think this is far more the reality of defense work than many critics of appointed attorneys believe.

While it depends on jurisdiction, in my area, retained attorneys typically charge a "trial fee" on top of their retainer. For example, an attorney may say, "I'll take your case for $7,500, but if you go to trial, I'll need an additional $5,000". Unless you're intent on taking it to trial, you need to think carefully whether $7,500 is worthwhile for that attorney to try and work out a good plea for you - because that's all you're really paying for on the front end.

While you could say that court appointed attorneys have a financial incentive to avoid trial in that in most places, they don't get paid more money to go to trial, I think most appointed attorneys find themselves in court often enough where they build a sort of willingness to take things to trial (as the client determines) anytime.
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  #33  
Old 01-19-2018, 12:34 PM
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It almost makes it hard to interpret case outcomes because the meaning of things are a bit confusing. In no way am I saying that cases are predictable but logically there has to be a method to delineate everyone's personal case in the way that it is litigated or are numbers just thrown out there by the prosecutors discretion.
Long story short, no one is entitled to a plea deal. As a matter of course, some deal is negotiated for in almost every case. Most prosecutor's offices have some internal guidelines as to what offers are made in particular type of cases, and those offers are always dependent not on who the defendant is, but on that person's criminal history. If you've been to jail 9 times before, and the prosecution has a pretty solid case against you, you're probably not getting a "no jail recommendation" or offer for probation only, even if someone else with the same charge may be offered something like that.

In counties big enough to have multiple assistant prosecutors, the particular prosecutor assigned to your case may have limited discretion as to what he or she can offer without getting approval from a more senior prosecutor. And some prosecutor's offices have "policy cases" where no offers are made except in exceptional circumstances. In my area, for example, the prosecution doesn't negotiate on DUIs. If you're caught drunk driving, you're going to plead to a driving related offense; depending on your BAC, you might be able to plea it down to visibly impaired or, in rare cases, reckless driving - but your offer will be something along those lines unless you take it to trial and win. Another common "policy case" is firearms - they throw that felony firearms charge on you, and it nearly takes an act of God to negotiate that away. Sex crimes is another big one where prosecutors are reluctant to negotiate too much.

And when it comes to sentencing, some judges have a very clear thought as to what he or she may think is an appropriate sentence for particular set of facts - subject of course to applicable sentencing guidelines. I have seen cases where an inexperienced prosecutor offers a short jail cap, and the judge gets a look at the PSIR and says "I'm not going along with this offer". And so that's another part of the equation that goes in to plea offers.

The point is that there is some thought, consideration, and in some cases policy that goes into what plea offers are made. It is not as willy nilly as it may appear to be.
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  #34  
Old 01-19-2018, 12:53 PM
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I really appreciate your in depth explanation. There was something I wanted you to clear up as far as the relationship between prosecutors, defense attorneys and judges. How is it that you guys have a close relationship such as going as far as doing outside activities with one another. My understanding of defense attorneys and prosecutors were that you guys were in competition with one another and that a personal relationship wouldn't be ideal. I mean when one wins a case isn't the other side dissapointed? Also why would a prosecutor not want to drop a case if they know they have less chances at winning? Sometimes I feel they still offer ridiculous bids knowing the odds are against them. I mean dont they still get paid wether someone gets 5 years or probation? I understand sentencing guidelines come into play but I guess what I'm saying is... What determines getting 5 years vs 2 when 2 different people get charged with lets say assault in the 2nd degree?
A better way to explain the relationship is that prosecutors represent "the people" and seek to hold individuals accountable for actions that go against society's rules, while defense attorneys defend those some rules - constitutional protections of the individual versus the state. One is not necessarily opposed to the other; you can have it both ways - and indeed that's what the system tries to get right everyday.

I'm not sure too many prosecutors lose sleep at night about any particular individual defendant one way or the other. That is to say that I am unaware of any cases where the prosecutor became so emotionally invested in seeing a particular person go down - in fact, if a conflict of interest develops (i.e., the defendant is accused of assaulting a prosecutor's mother, for example), that prosecutor would have a legal obligation to recuse themselves.

If you've ever been to a busy courtroom on a motion day, you'll see that prosecutors have stacks of files just like appointed attorneys. They barely know names of the people involved, and there is little time or incentive to get emotionally tied up into wanting to see someone to pay more than what the law provides. It's just not that personal to most attorneys in much the same way that I don't think medical doctors spend their career agonizing over the first patient that died on them. That's not to say no one cares; it's just that most good attorneys - prosecutors and defense attorneys care about doing the best job possible for his or her respective client. In the case of defense attorneys, that sometimes means getting a deal that allows a young man to live free for part of his 20s instead of spending decades in prison. Some may call that throwing in the towel or throwing the client under the bus....it's a matter of perspective.
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  #35  
Old 01-19-2018, 02:53 PM
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There are times when there will be no plea deal offered and the state will refuse a deal offered by the defense.

Well publicized cases involving child sex offenses, cases where the state has decided to actively seek death (as opposed to get a co-defendant to testify under the threat of death), high profile cases with a potential trial date just before elections (nothing like the free advertising of a long, well publicized trial just before elections - anything involving a child death stands out), to name a few. And there is the guy up on his 15th class 4 felony, usually involving the same pattern of behavior - yeah, he's not getting a deal. A blind plea, maybe, and even then, he's looking to hopefully get something other than the maximum possible sentence, but mostly, he's going to trial.
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Old 01-19-2018, 05:37 PM
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Thank you to everyone on this post who have debated and answered all the confusing questions I wanted to know. I must say this practice is inspiring and brings about a lot of wonderful ideas and theories. It's a work in progress and I appreciate all the detailed responses. I now have a better understanding of the legal process. This prison talk forum is a valuable tool!
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  #37  
Old 01-19-2018, 06:39 PM
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Here's the question I have for you: do you like everybody you work with?
I wonder if we're talking about the same thing.

If I had a co-worker who deliberately put an innocent person in prison then "like" and "dislike" would not be the relevant verbs.
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Old 01-19-2018, 07:41 PM
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I wonder if we're talking about the same thing.

If I had a co-worker who deliberately put an innocent person in prison then "like" and "dislike" would not be the relevant verbs.
When you vote for particular politicians, you are voting for people who make it much easier to out innocent people in prison, intentionally or unintentionally. When you vote for more prisons, you are voting to fill them.

And if you think that prosecutors actually come to my office and sit with me over a cup of coffee and bitch about the printer not working, then you are really blurring lines.

As I said, there are ways that businesses deal with people who act against the ethics of the profession. This happens in your profession, not just mine. People get disbarred for unethical practices. If people got a pass for deliberately and knowingly putting innocent people in prison, you'd never hear about it and there would be no cases freeing people or cases wherein prosecutors face criminal charges for malfeasance.

Did I golf with that prosecutor asshat? Nope. Did I vote for him? Nope. Did I report his actions to the Supreme Court of the state for his ethics violations? Yes. Did my bar correct the problem the best way it could? Yes.

What more do you want? The judiciary complained to the bar. His cases were not treated with the gravity he thought they should, and he got his ass chewed regularly. Did he try to put innocent people away? Yes. Was he successful? I hope not. Did he play fair? No. Did I kick him in the figurative shins more than once? Sure thing. Did good people face trial because he was an asshat? You bet. My guys were never convicted.

Here's the rub - he thought taking shortcuts and acting unethically was protecting the community. He firmly believed this. To this day, he doesn't think he did anything wrong.

There was also a judge who came from the prosecution side who was a very good judge up until dementia started taking his mind. As a result, he signed every warrant that came across his desk. As a result, said warrants were found unconstitutional or illegal by other judges resulting in the suppression of a lot of evidence of guilt. So, a wiretap that was overreaching was suppressed, etc. As a result, a lot of people walked free when they actually dealt drugs and the like. A good bar does this, and gets the guy off the bench as quickly as possible.

And like I asked - if the guy in the cubicle next to you, or how holding your ladder in the worksite, or driving the steamroller was an avowed Klansman who bragged about burning crosses, upsetting Jewish burials and cemeteries, and beating the hell out of people of color, would you quit your job? Would you sit at a lunch table with him? Would you simply refuse to carpool with the guy and allow the company to get rid of him after making formal complaints? Would you wear a wire for the police to get his bragging on the record? Would you look for a new job, refusing to be in the same building, or the same profession as the guy? Would you give him a piece of sheetcake at somebody's office birthday?

Do you know where your office mates spend their time? Dhow they vote? Whether they would think themselves justified in letting the air out of all of your car tires because of your relationship with prisons?
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Old 01-21-2018, 02:05 AM
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I didn't read every word of every post in this thread, but I think you need to distinguish between "opponent" and "enemy."

I recently negotiated (pro se) a settlement to a civil case against a very large, extremely scummy company. When I had the first communication with the attorney for the company, I said "Call me by my first name" and that's what we did. Part of my case was based on the company having a horrible reputation, and I once told her "I think your company is the most corrupt organization since Enron, maybe since the Nixon administration." But we still treated each other as opponents, not enemies. Eventually I made an offer and every time she counteroffered I stuck to my offer, and eventually she met it.

The point is that prosecutors and defense attorneys can be opponents without being enemies. It doesn't seem weird at all. In my professional life I was on the other side in negotiations from my professional bretheren, and sometimes the negotiations were legal proceedings. We were still opponents, not enemies.

Redirecting back to the main thread though, and just basing on what I've read here in similar threads, a private attorney will give you lots more hand-holding. For $xxx per hour they will tell your family how to put money on your books, return the calls from your sisters and your cousins who you reckon by the dozens and your aunts, and do all other sorts of **** that has a lot to do with client relations and nothing to do with how much time, if any, you do.

Remember too that a lot of clients are not eligible for a PD. In theory you aren't eligible if you make more than the poverty level, but I've been led to believe that pretty much anyone who can't make bail can get a PD. Private attorneys will sometimes be retained early in the case to keep the person from being arrested in the first place.
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Old 01-21-2018, 07:28 AM
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Nice Gilbert and Sullivan reference! And good analysis of the opponent/enemy dichotomy, redtop.
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Old 01-24-2018, 12:27 PM
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Just weighing in on the subject of a private attorney vs. PD.

Do your homework. In my husband's case we hired an outside legal consultant who also acts as PD in cases affecting the mentally ill. Very knowledgable in that aspect of the law. Not free, unless destitute and the case warrants attention.
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Old 01-24-2018, 12:48 PM
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Do not be dismayed if you don't get an immediate response from counsel.

Trust me, you do not want to be involved in a case where a senior parter will call back in an hour. This is not free. No news is good news.
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