Dallas Criminal Lawyers - Broden & Mickelsen

CHANGES TO THE CRACK COCAINE LAWS

    President Obama recently signed legislation reducing, but not eliminating, the disparate ways in which federal criminal law penalizes those involved with crack cocaine and those involved with powder cocaine.  This becomes the second small step in an attempt to eliminate the unjust fashion in which the federal drug laws distinguish between crack cocaine and powder cocaine, but there is  still a long way to go.

    Following the death of University of Maryland basketball star Len Bias from crack cocaine on June 19, 1986, Congress believed it had to adopt strong penalties to stem the growth of crack cocaine use.  Congress believed that crack cocaine was more dangerous than the powder cocaine that was used to “cook” crack.  Therefore, despite the fact that, scientifically, there is no difference between crack and powder cocaine, Congress passed laws that treated the two very differently.  This disparate treatment had the greatest effect on African-Americans because Caucasians tended to favor powder cocaine whereas African-Americans tended to favor crack cocaine.  

    In federal court, an individual’s sentence is determined by two factors.  

    First, there are the statutory penalties that set a sentence’s “floor” and “ceiling.”  Most criminal statutes do not provide for mandatory minimum sentences (i.e. a “floor”).  Nevertheless, drug statutes are among the few statutes with mandatory minimum sentences of five and ten years imprisonment.  In cases where there are such mandatory minimum penalties provided by statute, the mandatory minimum sentence represents the very minimum sentence the judge must given unless the government requests a sentence below the mandatory minimum sentence because a defendant has cooperated.  

    The second factor in determining a sentence is a defendant’s sentencing guidelines.  The guidelines provide an advisory sentencing range to a judge with the proviso that the range cannot be below the “floor” or above the “ceiling” set by the statute.  In other words, if a defendant’s statutory penalty range is 10 years (120 months) to life and his or her guidelines are 97-121 months, the guideline range effectively becomes 120-121 months.   In drug cases, the guideline range is based mostly on a defendant’s criminal history and the type and amount of drugs involved.  Since the United States Supreme Court’s decision in United States v. Booker, the guidelines are advisory and the judge has a lot of discretion to sentence below or above a defendant’s guideline range, but, again, the judge cannot sentence below the mandatory minimum without a “cooperation motion” by the government.

    Because of the crack hysteria, Congress set the statutory penalties for crack and powder at a 100:1 ratio.  In other words, the mandatory minimum penalties for powder kicked in at an amount 100 times greater than for crack.  For example, if a person possessed with the intent to distribute 50 grams of crack he or she faced a ten year mandatory minimum sentence.  On the other hand, a person had to possess with the intent to distribute 5 kilograms of powder to face the same ten year mandatory minimum sentence.  Nevertheless, in August of this year, President Obama signed a bill decreasing the ratio from 100:1 to 18:1.  Now, for example, a person must possess with the intent to distribute 280 grams of crack (instead of the 5 grams) to face the mandatory minimum sentence of ten years.

    As I said, this is the second step, toward sanity.  The first step was taken in 2007 when Congress amended the sentencing guidelines to reduce the crack penalties by two levels.

    Nevertheless, the new law raises several questions.  

    First, will it be made retroactive in order to benefit the many thousands of people in federal prison who were convicted of the unjust crack laws?  When the guidelines were changed in 2007, those changes were made retroactive, however, there is still no word as to whether the statutory changes just signed by President Obama will be made retroactive.  

    Second, will the sentencing guidelines be changed again to recognize the new “floors” set by the statutory change?  The sentencing guidelines still call for a sentence of 121-151 months for a defendant, without any criminal history, who is convicted of possession with the intent to distribute 280 grams of crack cocaine.  Of course, as mentioned above, the judges do not have to follow the guidelines, but, it is still important to amend the guidelines to reflect the new law. 

    Third, many judges, recognizing that there was no basis to treat crack and powder differently, were employing their own 1:1 ratio in computing a defendant’s sentencing guidelines, although they could not sentence below the statutory “floor” absent a “cooperation motion” by the government.  What will happen now?  Will those judges still use the 1:1 ratio rather than the new 18:1 ratio?

    As noted above, there is also still a long way to go.  First, ALL disparities between crack and powder should be eliminated.  Second, Congress must do away with mandatory minimum penalties where the only way to get around those minimums is through “cooperation motions” by the government.  These mandatory minimums result in the ridiculously high imprisonment rate in the United States and often produces highly questionable “snitch” testimony from defendants hoping to obtain a favorable “cooperation motion” from the government.

    Of course, it is imperative for defendants charge with any federal drug offense to hire an attorney that practices regularly in federal court and who is familiar with the intricacies related to sentencing in drug cases.  An experienced federal lawyer will be able to prepare an effective sentencing memorandum educating a judge about the unfair disparities in the way crack cocain and powder cocain are treated in order to obtain the least possible sentence for his or her client.

    For more information on how to select a criminal defense lawyer, please visit Selecting a Criminal Defense Lawyer

ARE THE FEDERAL JUDGES IN THE NORTHERN DISTRICT OF TEXAS USING THEIR DISCRETION UNDER BOOKER

    Since the United States Supreme Court decided  United States v. Booker, 543 U.S. 220 (2005), judges in the federal trial courts have had discretion as to whether to impose the harsh sentences that are sometimes called for by the United States Sentencing Guidelines.  Although Booker still requires District Court judges to consider the guidelines in imposing sentences, the judges are no longer bound by the guidelines.  Put another way, the guidelines are now considered advisory rather than mandatory.

    In light of Booker, it was interesting to see the sentencing statistics for the judges in the Northern District of Texas for 2009.  In 1007 cases sentenced in 2009 in this district, the judges followed the sentencing guidelines in 65% of the cases.  In a large majority of the cases in which the judges gave a sentence below the guidelines it was because of a defendant’s cooperation.  Yet in these “cooperation cases,” the defendants would have been eligible for these below guideline sentences even before Booker.  Indeed, the judges only used  their discretion under Booker to give a lesser sentence in 114 (11 percent) of the cases.  Moreover, they used their discretion under Booker to give a higher sentence in 46 (5 percent) of the cases.

    In sum, it does not appear that the judges in the Northern District of Texas are varying as much from the sentencing guidelines as judges in other districts or as much as was hoped by defense attorneys when Booker was first announced five years ago.  

    Of course, when a defendant is charged with a criminal offense in federal court, it is imperative that he or she retain a lawyer that practices regularly in federal court and is skilled in the application of the United States Sentencing Guidelines.  It is also important that lawyers present a comprehensive sentencing memorandum prior to a client’s sentencing and make a full presentation at the time of sentencing along with character witnesses in an attempt to persuade judges to use the discretion that Booker has given them.  It is disappointing that only 11 percent of the cases in 2009 in the Northern District of Texas resulted in a lower sentence as a result of a “Booker variance.” 

    

    CLICK HERE FOR THE 2009 SENTENCING STATISTICS COMPARING THE NORTHERN DISTRICT OF TEXAS WITH OTHER DISTRICTS

    

BEING PROACTIVE IF YOU ARE UNDER CRIMINAL INVESTIGATOIN

  Clients often wait to retain us until they are actually indicted.  Many times, however, had the client come to us when they first became aware they were under criminal investigation they might have avoided indictment all together or, at least, been in a better position to defend themselves once they were indicted.  Just as it is important to see a medical doctor before it is too late, it is important to be proactive about a criminal investigation.

    For example, if hired early, a criminal defense lawyer can conduct his or her own investigation while the facts are still fresh in the minds of potentially favorable witnesses.  Likewise, they can interview potential co-defendant’s before the co-defendants hire their own lawyers and become “off limits.”  Time and time again, we have seen the testimony of witnesses undergo subtle changes after they are interviewed by law enforcement officials, therefore, it is often extremely helpful when the defense is able to interview these witnesses and “lock in” their statements before they are interviewed by law enforcement officials.

    Likewise, if hired early on in the process, a lawyer can determine what steps you should take in an attempt to avoid an indictment.  A lawyer can counsel you on whether it is wise to meet with the police or government agents and can be present at any meeting.  A lawyer can also determine if it is wise to hire a polygrapher.  While “lie detector” tests are usually inadmissible at trial, they can be presented to prosecutors or law enforcement officials along with other information in an attempt to persuaded them not to pursue criminal charges.

    Indeed, by putting together as much information as possible, it is sometimes possible for an attorney to convince law enforcement not to pursue criminal charges in the first place or to convince prosecutors not to seek an indictment.  Even if prosecutors cannot be convinced to drop the charges completely, they may be persuaded to pursue less serious charges.  

    Also, in many counties in Texas, lawyers can make a presentation to any grand jury considering your case and present witness statements and alike to the grand jury in an attempt to convince the grand jury not to indict you (in other words return a “no bill” on the indictment).  At Broden & Mickelsen, we have been successful in making presentations to grand juries that have resulted in grand juries not indicting our clients or indicting them on significantly reduced charges.  These clients were often facing very serious charges.

    The bottom line, is that, by retaining a lawyer early, you may save significant money and stress down the line.  It is less costly and much less stressful to be proactive and attempt to avoid an indictment in the first place than to fight criminal charges at a full-blown jury trial.

    Simply put, if you learn you are being investigated and potentially facing criminal charges, you should contact a lawyer IMMEDIATELY.  Most lawyers do not charge for initial consultations, so you really have nothing to lose by being proactive.

    FOR ADDITIONAL QUESTIONS, PLEASE VISIT OUR WEBSITE AT www.texascrimlaw.com
   

DEFENDING CHILD PORNOGRAPHY OFFENSES IN FEDERAL COURT

Federal prosecutors are prosecuting child pornography offenses at an astounding rate both here in the Northern District of Texas and throughout the country.  Because of Broden & Micklesen’s reputation as one of the preeminent federal criminal defense firms in the United States, we were recently hired to represent the husband of an FBI agent who had been charged in federal court with distribution of child pornography.  While we often have to aggressively take on federal law enforcement agents in court, it was flattering that, when one of their own was in trouble, they turned to our firm.  The case of the agent’s husband is typical of how many child pornography cases usually arise and how they are prosecuted.

Often times, a federal agent, with a file sharing program, such as LimeWire, will sit at his computer in a distant state (in the case of the FBI agent’s husband, the federal agent was in South Carolina and the client was in Texas) and send search terms that he or she expects will identify computers with activated file sharing capabilities that have child pornography on them.  Child pornography is defined in the United States Code as meaning:

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where--

A.   the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

B.  such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

C.  such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

Once the agent locates a computer with alleged child pornography, he obtains images from the that computer using the file sharing program.  From there, the agent will get the ip address of the computer and obtain a search warrant from the computer’s internet provider to obtain the physical address where the computer is located.  The government then obtains a search warrant for the residence and the computer.  The search is normally conducted in the early hours of the morning.  The adults in the home are aggressively questioned in order to determine who was using the computer to download the alleged child pornography.  Usually, in an effort to protect others in the home, the person who downloaded the alleged pornography admits to having done so or at least admits that they are the one who uses the computer in question.  All computers in the home are then seized and the person is arrested.  Often if there are children in the home, Child Protective Services will get involved and interview the children.

Many people believe that by deleting a file on a computer, the file is completely “wiped” off the computer.  Often people charged with child pornography offenses learn the hard way that this is not true.  Law enforcement will send the seized computers off for a complete forensic analysis and often files that a person thought had been deleted will be found in the computer’s unallocated space.

In our experience, a person arrested for a child pornography offense will normally have no criminal record and no familiarity with the criminal justice system.  He will truly feel like he has fallen through the looking glass.  In many districts, he will be charged with DISTRIBUTION of child pornography since it was “distributed” through the file sharing program.  Distribution charges in federal court carry a five year mandatory minimum prison sentence and the person is NOT eligible for probation.  Moreover, while Broden & Mickelsen has, in many instances, been able to obtain the release of their clients pending trial, there is a presumption in the Bail Reform Act that no bond be set in these type of cases and the person should be detained pending trial.

It is very important that a person who finds themselves in this position hire an attorney skilled in federal court and skilled in defending child pornography case IMMEDIATELY.  A skilled attorney will increase the chances that the person will be released pending resolution of the charges.  A skilled attorney can also arrange for his own forensic analysis of the person’s computer to determine if the alleged child pornography was inadvertently placed on the computer or if there is some other defense to the charges.  Likewise, he cna determine if the images qualify legally as "child pornography."A skilled attorney will also analyze any “confessions” to determine if they are subject to a motion to suppress.

In our experience, many child pornography cases do ultimately wind up in a guilty plea given that, as mentioned above, the person will often have admitted to the offense at the time their computer is seized.  Nevertheless, this should only come after an experience lawyer fully evaluates the case.  Moreover, if a person is even considering pleading guilty to a child pornography offense in federal court, it is imperative that the person’s attorney understands the federal sentencing guidelines inside and out.  The federal sentencing guidelines, although advisory, attempt to guide judges in setting sentences. Unfortunately, over the past decade, the recommended imprisonment ranges for child pornography offenses have skyrocketed as a result of politicians attempting to curry favor with the public.  

It has gotten so ridiculous that many times a person who downloads child pornography and makes it available with a file sharing program actually faces a much harsher sentence than a person actually abuses a child.  In a recent case, based upon the number of images on his computer and other factors, the sentencing guidelines for a client we represented ,who was charged with distribution of child pornography through a file sharing program ,actually faced 151-188 months in prison.  We filed a sentencing memorandum, attempting to show the judge how dramatically the guidelines for these offense have been increased over the years by showing what sentence the guidelines would have called for over the past decade:

1987-11/1990 13 12-18 months

11/1990-11/1996 18 21-27 months

11/1996-11/2000 22 41-51 months

11/2000-4/2003 27 70-87 months

4/2003-11/2004 29 87-108 months

11/2004-pres. 34 151-188 months

Likewise, we pointed out that, had the client actually contacted a twelve year-old girl over the Internet, convinced her to meet him, and then the two engaged in repeated sexual acts, the client’s guidelines would only be 70-87 months- less than half of what he was facing for having images of child pornography on his computer.  We even pointed out, that under the sentencing guidelines, our client faced the same sentence as a defendant in a reported case who had paid $20 to have a mother hold down her nine year-old child while the defendant raped the young girl twice a week for two years. 

To see the full sentencing memorandum, click here:  SENTENCING MEMORANDUM

In more than in any other type of case, judges are ignoring the sentencing guidelines in child pornography cases.  Indeed, recent statistics show that judges in approximately 50 percent of the cases are imposing sentences in child pornography cases lower than provided for by the sentencing guidelines (although recall that, in distribution cases, there is a mandatary minimum sentence of five years).  In one case, the judge wrote:

The guidelines for child exploitation offenses were not developed using an empirical approach by the Sentencing Commission, but rather were mainly promulgated in response to statutory directives.  Specifically, the Protect Act directly amended guideline 2G2.2 by amending the guideline enhancements for specific offense characteristics.  These modifications do not appear to be based on any sort of empirical data, and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses.

The bottom line is that Congress has truly gone mad in increasing the penalties in child pornography cases. Therefore, if you find yourself charged in federal court with a child pornography offense, you must have a skilled attorney that knows how to defense these cases and who knows how to “deconstrtuct” the sentencing guidelines in these type of cases.   Even if you have to go outside the district in which you are charged, you owe it to yourself to find an attorney who is an expert in this area.  At the end of the day, it could save you from spending over a decade of your life in prison!

If you are charged with a child pornography offense, we urge you to call Clint Broden or Mick Mickelsen and we will consult with you about your case at no charge.

SHOULD I HIRE A TEXAS ATTORNEY THAT WILL ALSO POST MY BOND?

There are many Texas attorneys who advertise that they will “serve as both your bail bond agent (bondsman) and your attorney” and that they provide “competitive rates” for bail bonds that can later be applied to legal fees.

We strongly recommend that you NEVER hire an attorney that also agrees to be your bail bondsman.  Although “attorney bonds” are permitted in Texas, it appears that Texas may be the only state that explicitly allows this practice.

There is an excellent article written by two law professors, Dayla S. Pepi and Donna Bloom, entitled “Take the Money or Run: the Risky Business of Acting as Both Your Client's Lawyer And Bail Bondsman.” This article fully discuss this practice of attorneys acting as bondsmen and closely analyzes the practice..  As Professors Pepi and Bloom point out, most states and the American Bar Association(the “ABA”)  believe that it is unethical for attorneys to also act as their clients’ bondsmen.  For example, at the time of the article, ABA Formal Opinion 432, ABA's Standards for Criminal Justice 4-3.5 and ethics opinions and/or laws in Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Iowa, Kansas, Kentucky, Michigan, Minnesota, New York, North Carolina, Oklahoma, Oregon, South Carolina, Virginia, West Virginia, and Wisconsin  suggested that this practice is illegal and/or unethical except in limited circumstances.

The reason for this is clear.  Where a lawyer is both a client’s attorney and bondsman, there is an obvious conflict of interest.  Remember, if a client fails to appear in court, a bondsman can lose the full bond amount, therefore, an attorney wearing both hats has conflicting loyalties.  For example, a lawyer might refrain from informing a client about the weakness in his case for fear the client will jump bond and the attorney will be out his bond money.  Conversely, a lawyer may be quick to get off a bond in order to protect his own assets when he learns information, sometimes confidential information, that causes him any unease that the client may not comply with bond conditions. Likewise, the lawyer might not inform you that he is getting off the bond and you could find yourself at your next court appearance facing a bond revocation and no lawyer to advocate against it.   In many ways, a bondsman, is your “jailer,” as you await trial.  You want your attorney to be your advocate and a person you can fully confide in.  You do not want your lawyer to be your  jailer who is constantly monitoring you and analyzing what you tell him in order to make sure you are complying with bond conditions.

Besides, what if, forever reason, you decide later decide that you do not want the lawyer who you hired to post your bond to represent you anymore?  You are probably trapped and that is just the way the lawyer wants it.  It is almost certain that the lawyer who also serves as your bondsman will tell you that, if you fire him, he will go off your bond.  This could result in you being arrested for an insufficient bond before you are able to hire a new lawyer and arrange for a real bail bondsman to assume your bond.

At Broden & Mickelsen, we have clients come to us after their attorney/bondsmen have went “off the bond” without providing any notice to the client.  We have successfully used a section of the Texas Occupation Code to force the attorney to return the bond fee to the client and/or stay on the bond.  Tex. Occ Code § 1704.207 provides: “If the court finds that a contested surrender was without reasonable cause, the court may require the person who executed the bond to refund to the principal all or part of the fees paid for execution of the bond.”  Nevertheless, despite this provision in the Occupation Code,  you could wind up sitting in jail while this is all sorted out if you do not have money to post a new bond.

The bottom line is that we strongly urge you to not only walk away, but quickly run away from any attorney who advertises that they also post bonds for their clients.  The lawyer will tell you that the reason they do this is to “help” the client or to provide “one stop shopping.”  Don’t be fooled.  In reality, most lawyers do this for one reason: to make more money.  They make money for legal fees and for acting as a bondsman.  Again, this practice is not prohibited in Texas, but is generally considered unethical by many states, bar associations, and legal scholars.  Why then hire a lawyer who is willing to engage in such a questionable practice in order to make a bit more money at the possible expense of their client?

HIRING A CRIMINAL DEFENSE LAWYER FOR A FEDERAL CASE

A potential client came to see me the other day.  The potential client was charged in federal court with possession and distribution of child pornography.  When the potential client called me to set up the appointment, it was clear that he did not have much money.  He was being represented by a Federal Public Defender (FPD) and was not working.  I do not charge for initial consultations and was happy to meet with the gentleman even though I recognized that it was unlikely that he would be able to retain our firm.

What is noteworthy regarding my consultation with this person is the discussion we had regarding counsel.  I explained to him that there are several hundred criminal defense lawyers in the Dallas area and I could recommend several great attorneys if he was being charged in STATE court.  However, he was being charged in federal court and faced a mandatory minimum sentence of five years.  I explained to him that there are only a handful of lawyers in the Dallas area that practice regularly in FEDERAL court.  Federal court, I informed him, is very different than state court.  Generally speaking the federal judges are stricter about following rules of procedure and there are stricter deadlines.  Most importantly, there are mandatory minimum sentences in federal court and sentencing in federal court are driven by the sentencing guidelines.  As I explained to the potential client, the sentencing guidelines for child pornography offenses are particularly open to attack and, therefore, it was very important that any lawyer he hired knew about “deconstructing” these guidelines and the latest case law related to these guidelines.  

  I explained to the gentleman that, given the small number of area lawyers who regularly appear in federal court, legal fees did generally tend to be higher to retain a qualified lawyer in a federal case.  I spent a great deal of time explaining to him that, if he was unable to hire a lawyer that regularly practiced in federal court, he was much better off keeping his FPD.  He told me that he was leery of the FPD because the FPD had not returned several phone calls.  I informed him that, while it is true that many FPDs carry high caseloads making it difficult to give the client the type of attention a retained attorney might give them, that FPDs were experienced in representing clients in federal court and the application of the federal sentencing guidelines.  As he left my office, I implored the potential client to keep his FPD unless he was able to retain the funds to hire a criminal defense lawyer that practiced regularly in federal court.

I talked to the potential client several weeks later and he told me that he was going to hire a lawyer who he found in the yellow pages.  I know this lawyer.  The lawyer pays to advertise his practice on several pages in the yellow pages and is regularly seen running around the state courthouse with a printout that has a long list of clients set for that day.  I looked the lawyer up on PACER (a listing of cases in federal court) and found out that, during his long career, he had only represented defendants in our federal district in handful of cases and, in many of those cases, he withdrew or was fired before the case was finished.  I said to the potential client, “Let me guess, the lawyer said he would ‘get started’ on the case if you brought him $1,000.”  The potential client was amazed I knew that.  The reason I knew that is because it  is that lawyer’s practice to take any money the client has available and then, without a written contract, put the client on a payment plan.  However, as soon as the client stops paying, the lawyer will try to withdraw from the case and keep the fees previously paid.

The most ironic thing is that when somebody runs a volume practice like this lawyer and makes money on the fact that he has thousands of clients paying small fees, it is impossible for the lawyer to communicate with his client.  Nevertheless, this is why the client was not satisfied with the FPD attorney in the first place.  Of course, given the volume of practice, if the lawyer ever had to take a case to trial and spend several days in trial, his practice would implode.  

Out of curiosity, I checked PACER recently and, at least for now, it appears that the potential client has taken my words to heart and has stayed with the FPD.

The bottom line is that, for defendants charged in federal court, it is important to realize that there are only a small subset of criminal defense lawyers that practice regularly in federal court.  For defendants charged in federal court who are seeking to retain private counsel it is imperative that you ask any lawyer you are considering hiring how many cases he or she has handled in federal court.  You should demand that the lawyer show you on PACER the number of cases he or she has handled in federal court.  If a lawyer is not willing to do this, it should tell you that he or she does not practice in federal court on a regular basis.  Again, the reason this is so important is that the rules in federal court and the sentencing guidelines used in federal court make federal court practice very different than state court practice.

Finally, if you cannot afford a lawyer who handles at least several cases a year in federal court, I almost guarantee you that you will be better off with a Federal Public Defender than trying to hire a lawyer out of the yellow pages or a lawyer who rarely deals with federal procedures and the United States Sentencing Guidelines.

MAKING THE GOVERNMENT PAY

In rare cases in federal court it is possible to make the government pay for a wrongful prosecution.  On November 26, 1997, Congress passed the Hyde Amendment which provides that if a defendant prevails in a prosecution brought in federal court and the court finds that the prosecution was “vexatious, frivolous or in bad faith,” the government can be required to pay the attorney’s fees and litigation costs that the defendant incurred in connection with the prosecution.

Broden & Mickelsen recently forced the government to pay its client $356,000 under the Hyde Amendment.  It is only one of only a handful of Hyde Amendment claims that have been won since the passage of the law twelve years ago.  Nevertheless, the road was a very long one.

Count Wolfgang Von Schlieffen, a German Count, was arrested in 1993 and convicted at trial in 1994 of drug distribution after a trial held in the United States District Court for the Southern District of Florida.  He was sentenced to ten years imprisonment.

After going through approximately six sets of lawyers, Count Von Schlieffen retained Broden & Mickelsen in 1999.  Through the tireless efforts of one of the best private investigators in the country, Gary McDaniel from Palm Beach Florida, Count Von Schlieffen was awarded a new trial.  click for link to Gary McDaniel

At that trial Broden & Mickelsen was able to convince Judge Wilkie Ferguson that the main witness against the Count, a paid informant named Helmut Groebe, had entrapped the Count.  As a result, Judge Ferguson dismissed all the charges and released Count Von Schlieffen after the Count had spent almost seven years in prison.

Broden & Mickelsen then brought a Hyde Amendment claim on behalf of Count Von Schlieffen.  The Count had spent several hundred thousands of dollars on lawyers and investigators in order to defend himself and expose Groebe.  It was not until 2003, when Judge Ferguson was in the hospital and dying of Leukemia, that Judge Ferguson granted the Hyde Amendment claim. It would be the last order Judge Ferguson signed as he died approximately one week later.  In his order Judge Ferguson was highly critical of the way in which the government’s case agent, DEA Agent Lee Lucas, controlled Groebe.

The government sought to take advantage of Judge Ferguson death and sought reconsideration of his order.  Unfortunately, the motion actually sat with a magistrate judge for several years.  During that time, Count Von Schlieffen died but Broden & Mickelsen represented his estate in connection with the Hyde Amendment claim.

It was not until early this year, sixteen years after Count Von Schlieffen's death, that a final order was entered awarding the Estate of Wolfgang Von Schlieffen $356,000 for the government’s wrongful prosecution of Count Von Schlieffen.

Coincidentally, a few months later DEA Agent Lee Lucas, the agent that Judge Ferguson found had mishandled informant Groebe in this case, was indicted in the United States District Court for the Northern District of Ohio for conspiring with informants to falsely accuse innocent people of distributing drugs in the Cleveland, Ohio area.

For a news article about this case, click here: Hyde Amendment article

THE TRUTH ABOUT THE SETTING OF ATTORNEY FEES

As a practical matter, the fees lawyers charge tend to vary greatly. It is hoped that the following will help the potential client make at least some sense of attorney fees and how they are set.

NEVER HIRE AN ATTORNEY WITHOUT A WRITTEN FEE CONTRACT You might be surprised how many criminal defense lawyers do not provide written fee contracts. This is extremely dangerous and leads to potential problems. Often times an attorney who chooses not provide a fee agreement will tell the potential client that he will “start” the case at a very low price. Nevertheless, at every stage of the case, the attorney requires more money and threatens to withdraw from the case if he is not paid the additional sums. The result is that you can wind up paying much more than had you hired the attorney who seemed more expensive to begin with. A fee contract avoids these nasty surprises. Besides, why would any attorney not provide a written fee agreement that makes the obligations of both the attorney and the client clear?

AVOID HIRING AN ATTORNEY THAT WILL ALSO POST YOUR BOND While Texas does not prohibit an attorney from posting a client’s bond, many states do because of the conflict of interest that exists. The role of a bondsman is to make sure you appear in court and a bondsman has every incentive to inform the court if you are not complying with the conditions of your release. On the other hand, your attorney is supposed to be your advocate and protect you from having your bond revoked in the event you do not fully comply with your release conditions. We have also seen cases where, when a client gets behind on his legal fees, the attorney posting a client’s bond threatens, and sometimes does, have the client’s bond revoked as additional pressure to pay the outstanding legal fees. It should be easy to see why hiring an attorney to post your bond is rife with conflicts and should be avoided. You should hire an independent bondsman and an independent attorney.

BEWARE OF LAWYERS WITH A VOLUME PRACTICE There are many lawyers out there that have a “volume” practice who offer to do cases at cut rate prices (often these cut rate prices are to “start” the case and the attorney does not provide a fee contract). Many times, the income of these lawyers is actually substantially higher than other more qualified lawyers. Here is why. Let’s assume you think about hiring Attorney Smith. You found Attorney Smith in the yellow pages where he has a full page advertisement promoting low fees or Lawyer Smith has sent you, and thousand of other who had been arrested on a particular night a letter promoting his low fees. A yellow pages ad might cost Lawyer Smith $50,000 and he might spend thousands of dollars per month on mail outs. Because Attorney Smith gets so many calls from his ads and mail outs, he has to hire additional support staff to answer the phones and “screen clients” so that is more money toward overhead. Nevertheless, Attorney Smith is able to charge low fees because he has so many clients who respond to his ads and/or mail outs that he can make up for it and pay his overhead by running a volume practice. Often you will meet Attorney Smith for the first time in the courthouse when he shouts your name in the hallway. You will rarely, if ever, be able to get Attorney Smith on the phone to answer questions. If you resist pleading guilty and request a trial, many problems will arise. After all, how can Attorney Smith spend time preparing for trial and then sitting in a trial for several days? Simply put, he can’t because the house of cards he has created with the volume practice will collapse if he cannot meet the dozens of other clients who have cases set on the same day. Nevertheless, don’t feel sorry for Attorney Smith because he will often make much more money than the average attorney even after accounting for his high overhead. As a rough example, let’s say Attorney Smith charges $2,000 per case but handles 500 cases per year. That amounts to a gross income of $1,000,000. Now, lets say another attorney who actually returns your phone calls and has time to prepare your case and represent you at trial if that is in your best interest charges $5,000 per case but handles 50 cases per year. That only amounts to a gross income of $250,000. In sum, if you have a simple case in which you know there are no legal issues to raise and you absolutely know that you do not want a trial and you are not going to want to ask your attorney many questions, it could make financial sense to hire Attorney Smith. On the other hand, if there is any chance that you want to fight your case or you think you will have questions for your lawyer, spend the extra money now or you will have to spend even more later trying to undue what Attorney Smith did, or failed to do, for you.

BEWARE OF LAWYERS SIZING YOU UP Unfortunately, we have heard of many lawyers who attempt to determine how much money potential clients have and then charges them “as much money as they can afford.” We often see this with some California attorneys who advertise “national practices” on the internet. While it is admirable for an attorney to reduce her rate for a client with a low income, it is disgraceful for a lawyer to charge a wealthy client more than she would ordinarily charge because the client can “afford it.” Beware of lawyers who seem to be asking questions that are designed to determine your income or assets that have no relation to the charges against you.

LEGAL FEES IN STATE COURT WILL DEPEND ON THE TYPE OF CASE This is probably obvious. In state court, fees will almost always depend on the seriousness and complexity of the case.

LEGAL FEES IN FEDERAL COURT WILL BE SIGNIFICANTLY HIGHER As discussed on our website Broden & Mickelsen FAQs, there is a huge difference between state court and federal court. Almost all criminal defense lawyers are qualified to practice in state court. Nevertheless, very few criminal defense lawyers practice regularly in federal court. It is extremely dangerous to hire an attorney to represent you in a federal criminal case that does not appear regularly in federal court. Nevertheless, this means that there are very few lawyers to choose from if you are charged with a criminal offense in federal court. For example, in Dallas, there are probably less than 30 lawyers who appear regularly in federal court. Consequently, because of the limited supply, legal fees for criminal cases in federal court are often significantly higher than state court.

LEGAL FEES WILL VARY BASED ON THE LAWYER’S QUALIFICATIONS Again, this should seem obvious, although it is sometimes surprising what lawyers with minimal qualifications will attempt to charge a client. Some qualifications to look for is whether a lawyer is Board Certified by the Texas Board of Legal Specialization in criminal defense attorney. Texas Board of Legal Specialization Another is whether that lawyer is AV rated (the highest rating) by Martindale-Hubbell, an independent entity that rates lawyers. Martindale-Hubbell Another is whether the lawyer has been voted a “super lawyer” by other criminal defense attorneys and how many years he or she has been voted a “super lawyer.” Super Lawyers

FLAT FEE OR HOURLY FEE Generally criminal defense lawyers in Texas charge a “flat fee” for their representation (although they often charge a “split” fee as described below). An attorney should give you the option of paying an hourly fee, nevertheless, an hourly fee is generally more suitable for corporations that have very deep pockets. Individuals generally prefer the “flat fee” so they know in advance how much the legal representation will cost a the end of the day.

SPLIT FEE FOR PLEAS AND TRIALS Mostly all criminal defense lawyers in Texas will split the flat fee between plea and trial. For example. they might say that the fee for a plea is $5,000 but if the case has to be “set for trial there will be an additional fee of $5,000. At Broden & Mickelsen, experience has taught us to shy away from this type of fee arrangement. Although we will occasionally propose this arrangement where it seems very unlikely the case will proceed to trial, we believe such an arrangement interferes with effective representation because clients often times make decisions about how to defend their case based on financial concerns rather than legal concerns. Moreover, we have found that, in a large majority of cases, a plea offer will get appreciably better only after the case is “set” for trial. Therefore, even in cases that will not ultimately go to trial, it is often in the client’s best interest to at least “set” the case for trial. We would rather charge a fee in the middle (e.g. $7,500) and this way our advice to the client is not colored by the prospect of earning additional monies based on the advice we give and the client can make the decision as to whether or not to go to trial freed from the prospect of having to pay additional monies if he decides a trial is in his best interests.

CONTINGENT BONUSES We have encountered attorneys who attempt to charge a “performance bonus” if they can convince authorities not to indict the client, or if they win at trial, or if they get a case dismissed prior to trial. The Texas Lawyer Disciplinary Rules clearly prohibit such “bonuses” because they are “contingent” on a certain outcome. Texas Disciplinary Rules on Fees You would do well to avoid any attorney who does not follow the ethical rules of his or her profession.

EXPENSES In many cases, it will be necessary to hire a private investigator to investigate the case. In some case, it will be necessary to hire experts to assist the attorney or to testify at trial. It varies among attorneys as to whether these expenses are included in the legal fees charged. Again, however, it is important to have a written fee agreement so that it is clear who is responsible for these additional expenses.

OTHER ISSUES Many criminal defense firms, including Broden & Mickelsen, accept credit cards. Many criminal defense firms will not require the entire fee to be paid up front. For example, Broden & Mickelsen will generally require payment of half the fee up front and will make payment arrangement for the other half.

Difference Between an Appeal and an Application for Writ of Habeas Corpus

People are often confused as to the difference between an appeal and an Application for a Writ of Habeas Corpus.

APPEAL

An appeal (also known as a “direct appeal”) is taken immediately after a conviction and sentence. A person generally required to file a brief statement with the court called a “Notice of Appeal” within a short time after he is convicted. For example, with some limited exceptions, a Notice of Appeal must be filed within 10 days after a person is sentenced in a federal case and within 30 days after a person is sentenced in a state court case in Texas.

An appeal is limited to what is “in the record.” In other words, if an issue was not brought up through a pre-trial motion or at trial, it generally cannot be raised on direct appeal (of course there are some exceptions to this rule). Generally, in order to have the possibility of winning an appeal, three things must have happened: (1) The trial judge must have committed an “error” (i.e. did something he should not have done or did not do something he should have done); (2) The defense lawyer objected to the error at the time it was made; and (3) The error was harmful (i.e. the error might have affected the conviction or sentence).

There are four possible outcomes from an appeal: (1) The conviction and sentence can be affirmed; (2) The defendant (called the “appellant” on appeal) can be given a new trial; (3) The defendant can be given a new sentencing hearing; or (4) The defendant’s conviction can be overturned and he cannot be retried.

In the federal system, an appeal is taken to one of the twelve courts of appeals. For example, a person convicted in federal court in Texas, Mississippi or Louisiana takes an appeal to the United States Court of Appeals for the Fifth Circuit that sits in New Orleans, Louisiana. The Appellant the case submits a written brief, arguing the issues to be raised on appeal, to the Court of Appeals. The government is given an opportunity to respond with its own brief and then the Appellant can file a reply brief to the response. Often times, but not all the times, the lawyers will be called to New Orleans to argue the issues raised on appeal Eventually the Court of Appeals will render its decision in the form of a written opinion. While the time can vary greatly, generally speaking, it takes about 9-18 months from when a Notice of Appeal is filed to get a decision from the United States Court of Appeals for the Fifth Circuit. If either side is not happy with the result of the appeal, that party can file a Petition for Writ of Certiorari with the United States Supreme Court asking the Supreme Court to consider the case. Unlike, the Court of Appeals, the Supreme Court does not have to consider the case and, indeed, it considers less than one percent of the cases it is asked to hear.

In Texas, and in most other states, an appeal is taken to a state court of appeals. In Texas, there are fourteen courts of appeals. Like in the federal system, an appeal is decided by a three judge panel of the particular court of appeals that hears the case. The party that lose a criminal appeal in a Texas court of appeals can then ask the Texas Court of Criminal Appeals (essentially the Supreme Court in Texas for criminal cases) to consider its case by filing a Petition for Discretionary Review. Like the United States Supreme Court, the Texas Court of Criminal Appeals is not required to hear all the cases it is asked to hear. If the Court of Criminal Appeals refuses to hear the case or if it does hear the case and a party is not satisfied with the outcome, a Petition for a Writ of Certiorari can then be filed with the United States Supreme Court asking it to consider the case. Again, however, the Supreme Court considers less than one percent of the cases it is asked to hear

APPLICATION FOR WRIT OF HABEAS CORPUS

An Application for a Writ of Habeas Corpus can be brought if a person loses his direct appeal or if he elects not to pursue a direct appeal. Generally speaking, this procedure is used to raise issues that were not in the record and, therefore, issues that could not have been raised on direct appeal. In most states and in the federal system, the issues must be related to a denial of a constitutional right. An overwhelmingly large majority of applications for a Writ of Habeas Corpus allege that a persons’ trial lawyer and/or appellate lawyer was ineffective.

The “motions and briefs” page of our main website contains examples of some of the applications for a Writ of Habeas Corpus filed by Broden & Mickelsen and some of the issues that can be raised in such applications. Motions & Briefs

There are strict time limits for filing an Application for a Writ of Habeas Corpus (also called a 2255 motion) in federal court. The application must be filed within a year after a person’s conviction has become “final.” “Finality” of a conviction is complicated topic so person should consult with a lawyer to determine when his conviction became “final.” If the application is not filed within the one year time limit, it will be almost impossible to further contest a conviction in federal court.

Time limits, if any, to file an Application for a Writ of Habeas Corpus in state courts vary from state to state. In Texas, for example, there is no time limit in non death-penalty cases for filing an application (also called an 11.07 writ). Nevertheless, if a person does not obtain relief after filing an Application for a Writ of Habeas Corpus in a state court, they can raise the same issues in federal court despite the fact that they were originally convicted in a state court (this is called a 2254 motion). A 2254 motion must be brought within a year after a person’s conviction has become “final.” Again, “finality” of a conviction is complicated topic so a person should consult with a lawyer to determine when his conviction became “final.” Nevertheless, the time that a state writ is pending is not counted against the year time limit.

Generally speaking, a writ of habeas corpus is a person’s last shot at attacking their conviction. Nevertheless, there are many procedural traps and strict time limits involved with filing applications for such writs. Therefore, a person considering such a writ is well advised to speak to an experienced post-conviction lawyer to discuss the possibility of filing such an application.

CONCLUSION

Again, our firm has found that people are often confused as to the difference between an appeal and an Application for a Writ of Habeas Corpus. It is hoped that an example might further help people understand the difference.

Suppose a person is charged with murder in Dallas, Texas and it is uncontested that the murder occurred in Dallas on August 20, 2008 at 1:00 pm. Further suppose that the person charged with the murder can establish that he was with seven priests in Boston, Massachusetts on August 20, 2008 at 1:00 pm (Dallas time) and that he gives his trial lawyer the name and contact information of these priests.

If the lawyer tries to call these priests as witnesses at trial and the judge does not allow it, this issue could be raised on direct appeal. The reason it can be raised on direct appeal is that it will be in the trial transcript (i.e. it will be “in the record”) that the defense lawyer tried to call the priests as witnesses and the trial judge did not allow it. Therefore, a court of appeals can consider whether the trial judge was right or wrong in the ruling he made.

On the other hand, suppose the lawyer never contacts the priests and never mentions the priests during trial. Well, then, there is nothing “in the record” about the priests for a court of appeals to consider. Remember, a direct appeal, is limited to what is in the record and, generally, nothing outside the record can be raised on direct appeal. Nevertheless, a person could file an Application for a Writ of Habeas Corpus alleging that he was denied his constitutional right to effective assistance of trial because his trial counsel did not contact the priests and call them as witnesses and that, as a result, he was convicted because the jury did not know he had a solid alibi.

At Broden & Mickelsen, a good portion of our practice is dedicated to direct appeals and applications for writs of habeas corpus. For example, Clint Broden, alone, has handled over sixty appeals before the United States Court of Appeals for the Fifth Circuit, and has argued over thirty cases before that court. Nevertheless, we also try to be completely honest with our clients and the reality is that, after each step of the process, it becomes harder and harder for a defendant to win relief. Sadly, there are many times when a client could easily have won his case at a trial and comes to us after they have been convicted because they were not happy with their trial lawyer. Simply put, it is important to have a good lawyer at trial so that an appeal or an applications for writs of habeas corpus never becomes necessary. At Broden & Mickelsen, we handle federal trials throughout the country (having been involved in trial court cases in Texas, California, Illinois, Indiana, Iowa, New Orleans, Georgia, Florida, Louisiana, Ohio and New Jersey) and state trials throughout Texas. We firmly believe that to be a good trial lawyer you must also be a good appellate lawyer and that to be a good appellate lawyer you should be a good trial lawyer. In the end, we are confident that our record at trial and the number of times we have heard a jury say “not guilty” speaks for itself.

PUBLIC DEFENDER VS. PRIVATE ATTORNEY

An interesting study was reported in the New York Times discussing the difference between being represented by a public defender as opposed to being represented by a retained attorney in a criminal case. The study was conducted by two economists for Emory University. The study concluded that in serious cases “the average sentence for clients of public defenders was almost THREE YEARS longer than the average for clients of private attorneys.” Moreover, when all cases were considered, the average sentence for clients of public defenders was almost FIVE YEARS longer than the average for clients of private attorneys.

The January 8, 2007 New York Times Report is set forth in full:

SIXTEEN years as a state trial judge have left me with a deep respect for the professionalism and competence of the public defenders who handle felony cases for indigent criminal defendants in my courtroom. In fact, I’ve told friends, only half-jokingly, that if they are ever charged with a serious criminal offense, the first thing they should do is give all their assets to charity, in an effort to qualify for public defender representation.

So when two economists from Emory University, Paul Rubin and Joanna Shepherd, agreed last year to collaborate with me on an econometric study of how effective public defenders really are, I had to guard against confirmation bias. I was positive that public defenders would prove more effective than their private counterparts. Mr. Rubin and Ms. Shepherd, with their occupational faith in markets, were equally positive of just the opposite. In the end, the economists were right, though with an interesting twist. (The full study has been published in the Ohio State Journal of Criminal Law.)

We looked at all 5,224 felony criminal cases filed in Denver in 2002. Most other studies measure lawyer effectiveness through indicators like acquittal rates, but we used the one thing criminal defendants care about most: the amount of jail or prison time they receive. Thus, acquittals counted as zero. Probationary sentences likewise counted as zero, unless the probation was combined with some jail time.
We counted halfway-house sentences as 120 days, which is typical for Denver defendants. We counted the initial length of a prison sentence without decreasing it for early release or increasing it for parole violations. Life sentences we arbitrarily counted as 110 years.

My economist friends were able to use regression analyses to control for other variables (such as whether a case was plea bargained or went to trial), to minimize the chance that the differences we found were caused by factors other than effectiveness. They also used regressions with different combinations of variables, to ensure that our results were not sensitive to a particular variable.

The results were surprising. The average sentence for clients of public defenders was almost three years longer than the average for clients of private lawyers.

But our most notable finding was hidden in one of the variables we had controlled — the seriousness of the case. We had assumed that public defenders on average handled more serious cases than private lawyers, if for no other reason than that such cases carry higher bonds, and defendants who can’t make those bonds are often rendered indigent by their pretrial incarceration. The length of their clients’ sentences would of course be distorted by the fact that they handle more serious cases with longer potential sentences.
But when we removed the control for the seriousness of the crime, public defenders performed relatively worse, not better (five years more incarceration versus three years more).

When we examined the seriousness of the cases handled by each type of lawyer, we discovered not only that private lawyers tend to handle more serious cases, but also that as the seriousness of the case increases, the chances that a private lawyer is handling it also increases. What in the world could explain such a result?

It turns out that the explanation, at least in part, is one that should put a smile on the face of all free-marketers and rational choice theorists: criminal defendants, just like any other consumers of services, appear to be making choices based on their rational assessments of costs and benefits. But, you might ask, do criminal defendants ever really have a choice between public defenders and private counsel? It appears many do.

Our data suggested that, contrary to the law’s rather binary notion of indigency, a large chunk of felony criminal defendants are what we have called “marginally indigent.” They could, if they had to, tap hidden resources, or the resources of family and friends, to retain private lawyers. But what drives that decision? Just what you’d expect from any rational consumer of criminal defense services: a combination of the seriousness of the offense and the likelihood of conviction.

Imagine a guilty, marginally indigent defendant facing a relatively minor felony (for which he will most likely get probation). Now add to the mix the fact that his crime was captured on videotape, meaning he has a small chance of avoiding conviction. It is unlikely such a defendant would deplete his and his family’s and friends’ resources to hire a private lawyer when he could get a free public defender to achieve the same result.

At the other end of the spectrum, imagine a marginally indigent defendant charged with first degree murder, and imagine that he is innocent. Wouldn’t that defendant do everything in his power to marshal the resources to hire a private lawyer, if he believed, rightly or wrongly, that the private lawyer were more likely to achieve an acquittal?

In other words, marginally indigent defendants who choose public defenders tend to be guilty. And of course if that’s true, it’s not at all surprising that public defenders would achieve less favorable outcomes.
More work needs to be done to confirm these results. But if they hold, and hold nationally, they could have important policy implications. Roughly one-third of all states have formal statewide public defender systems, and several others have regional or local systems. Current debates about improving these systems tend to revolve around two poles: increased financing (for which public defenders have been clamoring since the 1980s, when per client spending in most systems, in real dollars, took a nose dive from which it has never recovered) and, more recently, privatization.

If it is true that public defenders achieve substantially worse results for their clients than private lawyers, that fact should be troubling to us all, quite apart from whether the difference is the product of underfinancing, government inefficiencies or both.

But our results suggest a more benign explanation, and a less drastic solution than spending more on public defenders or privatizing the system. If self-selection by guilty, marginally indigent defendants is driving a big part of this effectiveness difference, the remedy may simply be to tighten the mechanisms we use to determine indigency. This solution would not only reduce the outcome differences between public defenders and private defense lawyers, but it would also give taxpayers more bang for their public defender buck.