Dallas Criminal Lawyers - Broden & Mickelsen

What Can You Do for Me?

    Every day at least one potential client asks me, "What can you do for me?"  It is natural enough.  A person has been charged with a crime; they are concerned about their future; and they are confronted with the expensive prospect of hiring a lawyer to defend them against the charges.  Before they make that expenditure they want to know what they are getting for their money.  Usually when we spend money we get something tangible in return.  Unfortunately, hiring a lawyer is different.
    A lawyer cannot ethically tell a client how the case is going to turn out based on an initial consultation.  Before the lawyer can even give an opinion the lawyer has to review the evidence and communicate with the prosecutor.  If the lawyer could promise a certain result the implication would be that justice is for sale.  In other words, the lawyer would be suggesting that if the client just pays a certain fee than the opinions of the prosecutor, judges and alleged victims are irrelevant.   Although there are many problems with the justice system in America, fortunately it is not simply for sale.
    To be sure, a lawyer can say things like, "Assuming everything you say is true, based on my experience this is probably what is going to happen."  However, potential clients should be wary of statements like this.  Everyone is biased towards themselves, and all the more so when the stakes are high.  Few clients, whether they be guilty or not, relate the facts of the case in the same way as the alleged victim does.  As a result often neither the prosecutor or the court will end up accepting the potential client's version of events as the whole truth.  Yet the worried potential client wants assurance that things are going to turn out o.k., and that his or her version of events will be accepted by either the prosecutor or the court.  So most often, when a lawyer says, "assuming everything you say is true, this or that will happen," the client hears, "if you hire me, then the result will be this or that."
    Well, if one should not hire a lawyer based on a predicted result, on what basis should the client hire a criminal defense lawyer?  First, qualifications such as experience; board certification; Super Lawyer ranking; Martindale-Hubbell AV ranking; quality of legal education, etc.  At Broden & Mickelsen, both Clint Broden and Mickelsen each have eighteen years of experience practicing exclusively criminal law; are board certified; ranked Texas Super Lawyers; have the highest Martindale-Hubbell ranking of AV; and attended two of the nation's best law schools. See our biographies on our website: http://www.brodenmickelsen.com/clintbroden.html and http://www.brodenmickelsen.com/mickmickelsen.html.  Also, you should meet with your potential lawyer and base your decision on personal rapport.  Ask yourself does this lawyer seem honest, ethical and competent?  Is this the kind of person I want to stand up in court on my behalf and credibly represent my intetests?  These are the questions one should ask themselves rather than what is this person promising to do for me.

Supreme Court Narrows Rule that Police Cannot Rely on Illegally Seized Evidence

    On Wednesday January 14, in the case of Herring v. United States, the Supreme Court further signaled its hostility to the exclusionary rule.  The exclusionary rule is the rule that does not permit state or federal prosecutors to use evidence against defendants that was acquired in violation of the law or the Constitution.  Many people have criticized this rule observing, "Because the constable blunders the criminal goes free."  On the other hand if governments can make use of illegally acquired evidence what deters governments from violating the law themselves in order to combat crime?
    In Herring v. United States the police mistakenly arrested the wrong man pursuant to the warrant.  Although they had the wrong man, they did catch a criminal.  When he was wrongfully seized the police found a gun and methamphetamine.  Because the man had been convicted of a felony before the mere possession of the gun constituted a felony offense.
    Justice Roberts, writing for the majority of justices, held that the exclusionary rule should be employed as a last resort and that judge should use a sliding scale when determining whether to exclude evidence.  According to Justice Roberts the police conduct must be sufficiently deliberate so that exclusion can meaningfully deter it and sufficiently culpable so that such deterrence is worth the price paid by the justice system.
    In the past illegally seized evidence was illegal and could not be used in court, period.  In the 1980s the Supreme Court departed from that analysis and held that if a neutral magistrate judge screwed up, rather than a police officer, the illegally seized evidence was nevertheless admissible.  More recently the Supreme Court held that if the police violated the rule requiring them to "knock and announce" before charging into a home, subsequently seized evidence was not subject to the exclusionary rule.   Now they have carved out from the purview of the exclusionary rule evidence that is illegally seized as the result of police officer negligence.
    The significance of this decision is profound.   As a practical matter the courts are only going to exclude evidence when it shocked by the police conduct and believes the police are engaging in intentionally illegal conduct.  If the police for example, ignore the legal requirements for getting permission to set up a wiretap it is unlikely the courts are going to hold under those circumstances the evidence should be admissible.  If the police, for example, break into a suspect's home just to "fish" for evidence, it is unlikely the courts are going to permit the prosecutor to make use of that illegally seized evidence.  Such cases are few and far between.   The old rule required the police to be on their toes and try to get it right.  Now it may actually pay for the police to be a little incompetent.

WHAT YOU SHOULD EXPECT FROM YOUR CRIMINAL DEFENSE LAWYER

            You have a right to expect several things from any lawyer you hire with the understanding that, like many things in life, you often get what you pay for.  To further complicate the matter, however, we are familiar with lawyers who charge absurdly large fees and provide no better representation than a lawyer you might hire out of a phone book.  For more information on selecting a lawyer read the Broden & Mickelsen website.

 

            At minimum you have a right to expect the following from the lawyer you hire:

 

            1.  Your lawyer should thoroughly familiarize himself with your case before offering you advice on whether to accept a plea bargain or fight the case at a trial.  This process should include both a legal and factual review of your case.  The legal review should include, among other things, a review of the charges against you to determine if there are legal challenges that can be brought against the statute you are charged with violating, a review of the indictment against you to determine if there are deficiencies in how you were charged, and a determination of how the prosecution obtained its evidence to determine if it is subject to a motion to suppress.  The factual review should include, among other things, a review of all the discovery in your case provided by the prosecution, a review of all documents that you provide and the lawyer having his investigator interview both favorable and unfavorable witnesses.  BEWARE OF ANY LAWYER WHO PUSHES YOU TO ENTER A PLEA BEFORE THIS REVIEW IS COMPLETE.

 

            2.  Once the review is complete, you should expect OBJECTIVE advice from your lawyer as to the strengths and weaknesses of your case as well as possible plea options.  Clients sometimes get discouraged at this stage and do not believe that their lawyer is “fighting for them.”  As we tell clients, you are paying a lawyer to be your advocate in front of a judge, jury or prosecutor, but, when it is the two of you talking, you are paying the lawyer to give you objective advice to help you make a decision as to how to handle your case.  It would be very damaging to your case for a lawyer to sugar coat things at this stage and not tell you the weaknesses in your case.  Clients are often too close to their case to evaluate it objectively.  As we explained in an earlier post, we normally advise against fee agreements that pay a lawyer extra if you elect to have a trial because this creates an incentive for a lawyer not to be objective about the risks of going to trial.

 

            3.  If you elect to plead guilty, you should expect your lawyer to try to negotiate the most favorable plea possible with the prosecutor while keeping in mind that a defense lawyer cannot force a prosecutor to offer a particular plea bargain.  Similar to any negotiation, this sometimes means the lawyer might pretend that the case will proceed to trial in order to get the prosecutor to “blink first.” If a plea agreement is reached, you should expect a lawyer to thoroughly explain the plea bargain to you so that you understand it COMPLETELY as well as the various consequences of pleading guilty.

 

            4.  If you elect to go to trial, you have a right to expect your lawyer to strongly advocate your case to a jury.  Before the lawyer can do this, however, they must understand all the evidence that the prosecution will use and have all of your evidence and witnesses prepared.  Many times we see defense lawyers waive making an opening statement in a trial because they don’t fully understand the prosecution’s evidence and they hope to learn about the evidence for the first time when the prosecution puts the evidence on at trial.  As you can imagine, this often proves disastrous.  You should expect your lawyer to spend time preparing your witnesses to testify and, if you are going to testify, you have a right to expect the lawyer to spend significant time practicing your testimony and explaining how the prosecutor will likely cross examine you.

 

            5.  At any sentencing hearing, if there is no agreement as to what sentence will be imposed, you should expect your lawyer to advocate for the lowest possible sentences.   Like at trial, this will require the lawyer to understand the evidence and witnesses the prosecution might use to increase your sentence and will also require the lawyer to be prepared to present evidence and witnesses on your behalf to help lower your potential sentence.  After sentencing, you should expect that lawyer will explain to you any options you have regarding an appeal.

 

            6.  Above all else, you have a right to expect your lawyer to be available to answer questions.  One lawyer writes on his website “don't expect him to be able to return all of your phone calls within half a day. A good lawyer will always be very busy and you should allow him 48 hours to return your calls.”  We strongly disagree.  Except in rare circumstances, you should expect your lawyer to call you back the same day even if this means calling you at night after he finishes in court for the day.  This is the reason that we post the mobile phone numbers of all our attorneys on our website so that you can easily reach us and, if we are unavailable, leave a message that can be returned promptly and not two days later.

 

            Always remember, your lawyer works for you and, more than likely, you are paying the lawyer a significant amount of money.  No question is too foolish when your liberty is at stake.  The time to ask the questions is before entering a plea because, once you have done so, it is very difficult, if not impossible, to go back.  Conversely, you should make sure that, if you elect to go to trial, you understand any plea options you are giving up, because, if you are convicted at trial, it will be too late to go back and accept the plea agreement.  The key is to ask questions because you have a right to expect honest and objective answers from any lawyer you hire.

 

Arguing an Important Case before the Court of Criminal Appeals

    On December 10, 2008, the Court of Criminal Appeals (the Texas Supreme Court for Criminal Cases), in a case that I argued, handed down a decision reversing the lower court.  The Texas Court of Criminal Appeals is arguably the most unfriendly appellate court for criminal defendants in the country so anytime a defendant wins in that court the decision is remarkable.  In addition, this decision is remarkable because it addresses an important point of law that is favorable to criminal defendants and it was a unanimous decision.

    The facts in State v. Ruffin have never really been in dispute.  In April 2005 Mr. Ruffin suffered from a mental illness.  He was hallucinating and acting erratic.   Among other things he was randomly discharging firearms on his rural property in Coryell County.

    The police came that night to investigate.  When they arrived Mr. Ruffin shot a rifle in their direction.  He appeared to recognize one of the officers who he knew on a personal basis.  More officers began arriving, many of whom were attired in black tactical squad uniforms.  Throughout the night Mr. Ruffin would not let the officers approach.  The morning following the stand off one of the officers called Mr. Ruffin's house and he picked up the telephone.   The officer identified himself as Scott and Mr. Ruffin thought he was doctor.   Pursuant to Scott's instructions, Mr. Ruffin walked outside where he was "startled" by the officers who quickly surrounded and arrested him.

    Mr. Ruffin's trial lawyer, Mr. Hunt, did not present an insanity defense.  His expert witness stated that although Mr. Ruffin suffered from delusions he knew it was wrong to be shooting at the police officers.  At trial, Mr. Hunt offered his expert's testimony to show that Mr. Ruffin suffered from a "diminished capacity."  The trial court excluded the expert's testimony reasoning that such psychiatric testimony was limited to cases in which the defense was presenting an insanity case.  Under Texas law, if the defense wants to present an insanity case it must give notice to the prosecution and the defense must prove that the defendant probably did not know his conduct was wrong.  (Which the Court of Criminal Appeals has equated to mean that the defendant did not know his conduct was illegal.)  By asserting that the expert's testimony was being offered to show that Mr. Ruffin had a diminished capacity to form the intent to shoot at police officers, the burden of proof remained on the State to show Mr. Ruffin had the intent to shoot the police officer.  Moreover, the defense was not required to provide the State with notice that it was presenting a defense that relied on the testimony of an expert witness.

    The court of appeals affirmed the trial court's decision.  It acknowledged that the expert testimony might had to have been admitted in a murder case, but not in a non-murder case.

    The Court of Criminal Appeals agreed to review the case.  In its decision it made clear that Texas law does not recognize a "diminished capacity" defense in the sense that a defendant cannot argue that due to a mental impairment he was incapable of forming the intent necessary to commit the offense.   However, the Court did recognize that a defendant may always argue that he did not have the intent to commit the crime, and may support that contention with expert testimony that he suffered from a mental defect.  If you find these distinctions confusing, you are in good company.  Most judges, prosecutors and defense lawyers also find these distinctions confusing.

    Let's consider the typical insanity case.  A mother with a history of mental illness murders her children.  When she is arrested she acts psychotic and claims that God directed her to kill her children.  (Think Andrea Yates.)  Of course her defense lawyer can assert that she was insane at the time of the offense.   He must assume the burden of proof and give the State notice that this is his defense.  He may have a problem, however.  His client in his statement may have acknowledged that she knew it was illegal to kill the children but nevertheless thought it was justified because God commanded it.  In that event, she may be precluded from successfully mounting an insanity defense.   The defense lawyer should also steer clear from asserting a "diminished capacity" defense.  It seems clear that he cannot assert that due to her mental illness his client was incapable of forming the intent to kill her children.   However, the lawyer may be able to assert a "negation of intent to commit the crime defense."  If for example, his client claimed that she thought she could kill her children because she in fact thought they were not children, but devils, then he could assert, with the support of expert testimony, that she did not intend to kill a person and is thus not guilty of murder. 

    The Ruffin case is being sent back to the lower courts for further consideration.  One thing I am certain of, is that the litigation surrounding the issue of presenting mental impairment issues in the guilt and innocence phase of trials is far from over.

THE DIFFERENCES BETWEEN STATE AND FEDERAL COURT FOR CRIMINAL DEFENDANTS

     When a potential client calls our firm and tells us that they are charged with a criminal offense, one the first things we generally ask them is whether they are charged in state or federal court.  There have been several instances where we have represented two individuals at the same time who are charged with similar offenses but one has been charged in federal court and one has been charged in state court.  Indeed, this has happened several times where we have simultaneously been representing two individuals charged with drug offenses but one is charged in state court and one is charged in federal court.  It also happened very recently where we simultaneously represented a defendant charged with a child pornography offense in state court and also represented a defendant (actually he was the spouse of an FBI agent) charged with a child pornography offense in federal court. 

     The reason that this is such a concern is that, often, the results for the defendants charged in state court are dramatically different than the results for the defendants charged in federal court.  Indeed, it is not unusual for a defendant charged with a drug offense or child pornography offense in state court in Dallas County to be placed on probation and a defendant charged with the same or similar offense in federal court to be sentenced to ten year or more in prison.

     Why is this?  In state court in Texas, regardless of the offense with which a defendant is charged with, he can be placed on some type of community supervision.  For example a defendant can commit murder and be placed on community supervision in state court.   On the other hand, federal court sentencing is done under a system of guidelines that score a defendant’s offense and criminal history using a grid system.  This grid system can lead to very harsh sentences even for first time offenders.  Moreover, most drug offenses in federal court require “mandatory minimum” sentences under the federal, drug statutes.  I recall one time many years ago representing a client charged with counterfeiting in federal court who faced a two year sentence under the federal sentencing guidelines and his wife bringing me a newspaper article about a murder defendant in state court being placed on probation and me having to explain to her the unfair differences between state court sentencing and federal court sentencing.

     The differences result from being charged in state court versus federal court is not only limited to the ultimate sentences imposed.

     First, in many Texas counties, a defendant charged in state court can make a presentation to the grand jury in an attempt to convince the grand jury not to indict him in the first place.  Such presentations cannot be made to federal grand juries and it is rare that a federal grand jury will refuse a prosecutor’s request to return an indictment.

     Second, often the chances of winning a case at trial or having the case dismissed prior to trial in state court can be significantly higher than in federal court.  One reason is that the offenses prosecuted in state court are investigated by local police departments who are not nearly as well trained as federal agents who normally investigate the offenses prosecuted in state court.  Consequently, sometimes mistakes are made by the local police officers that can be used to a client’s advantage.  Likewise, federal prosecutors tend to be more experienced and have more resources than state prosecutors.  Another reason that the chances of winning a case in state court can be significantly higher than in federal court, at least in Dallas County, is that state court juries are selected from Dallas County residents only and tend to be lest prosecutorial oriented.  On the other hand, federal juries for the federal court that sits in Dallas (the United States District Court for the Northern District of Texas) are chosen from residents of several of the surrounding Texas counties (some over an hour away) including many of the more conservative “law and order” areas.  Still another reason that the chances of winning a case in state court can be significantly higher than in federal court is that Texas state law permits the suppression of evidence in more circumstances than federal law.

     Third, suppose a defendant receives a ten-year sentence in state court and a different defendant receives a ten-year sentence in federal court.  The defendant in state court might be paroled after serving only a couple of years of his sentence.  On the other hand, parole has been abolished in the federal system and defendants serve 85 percent of their sentences.

     Fourth, in state court, if a defendant enters a plea agreement with the prosecution, he will know exactly the sentence he will receive if the judge accepts the plea and he will often be sentenced on the same day they enter their guilty plea.  On the other hand, most plea bargains in federal court require a defendant to plead guilty not knowing the sentence he will ultimately receive and the sentence will not be imposed until two-three months after the defendant enters his guilty plea.  A defendant in federal court must rely upon the skill of his defense lawyer to accurately calculate the sentencing guidelines and, even then, the judge might give a harsher sentence than is provided for under the guidelines.  Also a defendant in federal court will not be allowed to withdraw his guilty plea if, at the sentencing held a few months later, the sentence is harsher than his lawyer predicted.

     Fifth, because the federal system is a lot more complicated, only a small percentage of criminal lawyers can effectively represent a defendant in federal court.  Indeed, as we have explained elsewhere, a defendant charged with a crime in federal court must carefully question his lawyer regarding that lawyer’s experience in federal court and should ask the lawyer to give them a print out from the PACER system as to the number of defendants the lawyer has represented in federal court.  Selecting a Criminal Defense Lawyer In any event, given the limited supply of criminal lawyers that can effectively represent a defendant in federal court, legal fees tend to be significantly higher for defendants charged with crimes in federal court.

     There might be some advantages to being charged in federal court. 

     First, while this is a gross generalization, federal judges tend to be smarter than their state court counterparts.  State court judges in Texas are elected and anybody with a law license is eligible to run.  The President of the United States appoints federal judges for life.  Thus, if a defendant has a technical legal argument, a federal judge might better receive it.  Likewise, a federal judge does not have to run for reelection and might be less likely to make decisions based on public perception.  Still, remember that, when it comes to sentencing, federal judges must give significant weight to the harsh federal sentencing guidelines.

     Second, in state court, a defendant is required to post bail to secure their release prior to trial.  In federal court, many defendants are released without being required to post bail.  On the other hand, in state court bail is set in all cases, whereas, in federal court, if it is determined that a defendant is a danger to the community or a flight risk, bail might not be set at all and a defendant will be detained pending trial.

     Generally speaking, a person has no control over whether they are charged in state court or federal court.  Many crimes can only be prosecuted in state court (for example, except in limited circumstances or in cases involving federal lands, murders and assaults are only prosecuted in state court).  For the most part, the type of offenses that generally overlap are: drug offenses, child pornography offenses, fraud offenses involving banks and embezzlement schemes.  Usually it will depend on what agency investigates the case (e.g. the local police as opposed to the FBI, DEA, IRS and alike) as to where the case is brought.  Nevertheless, on some rare occasions, if a lawyer gets involved prior to formal charges being brought, that lawyer might be able to influence the forum in which the charge is brought.  This is an important reason to retain an attorney as soon as you find out that you are being investigated for a criminal offense.

Beware of a Fee Contract that Includes Expenses in the Flat Fee

    Usually when someone is confronted with the prospect of hiring a criminal defense lawyer they are under a lot of stress.  In addition to the stress arising from the prospect of being convicted and possibly going to jail, the potential client is confronting financial stress.  Not only must the potential often expend funds to make bail, he has to expend money to hire a lawyer.

    Naturally when the client is meeting with the prospective lawyer, he wants to hear some good news.  The last thing he wants to hear about is another expense in addition to making bail and hiring a lawyer.  Knowing this, many lawyers are reluctant to tell the client that he should be prepared to expend money for bail, the attorney, and possibly investigators and expert witnesses.   Sometimes, to avoid overwhelming the potential client, the attorney may suggest that the client pay a single flat fee that will encompass all expenses.   The potential client may jump at this offer feeling confident that no matter what happens if he pays some specified amount his legal expenses are covered.

    The problem with this scenario is the client must then count on his lawyer putting his client's interest ahead of his own interest.   For example, imagine a woman is accused of shaking their baby so hard that the baby has suffered irreparable brain damage.  The lawyer requests a $25,000 flat fee.   The potential client breathes a sigh of relief knowing that if she depletes her bank account she can pay this fee.

    Six months later the cases approaches trial.  The lawyer feels that his client will make a good witness for herself and believes an expert witness would be helpful, but not essential, to his case.  After making inquiries he determines the expert will cost $7500.  Now the lawyer has to decide, in effect, to take $7500 out of his fee to hire the expert or try the case without the expert and keep the entire fee.   The client does not want the lawyer weighing the value of having the expert testify against his own pocketbook.   The bottom line is the client needs to be the one weighing the value of the expert testimony against her own pocketbook. 

    At Broden & Mickelsen we advise that fee agreements provide that expenses for expert witnesses and investigators be kept separate from the attorney's fee.

   

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.

The Truth about DWI Charges

Generally speaking criminal defense lawyers look forward to representing people charged with DWIs.  Many clients clients charged with a DWI are reasonable, articulate and, probably most importantly to lawyers, are able to pay a fee.  Unless a person is charged with having committed their third DWI, the stakes are not as high as when representing a client charged with a felony crime, and unless there was an accident, the lawyer does not have to confront an injured victim.   As a consequence, lawyers aggressively market for the DWI business, and as usual, when aggressive marketing is taking place, the truth is often sacrificed.  The following is a little "straight talk" about DWIs.

The  many DWI cases that go to trial have similar facts.  The defendant was driving between the hours of 11 pm and 5 am and is stopped by a police officer.  The officer claims to smell the odor of alcohol and asks the driver if he has had anything to drink.  The driver says he had one or two drinks several hours ago.  The officer asks the driver to perform field sobriety tests.  Usually the first is the horizontal gaze nystagmus test.  This is the test where the officer asks the driver to track a pen or flashlight with his eyes.  The officer concludes that the eye began to shake or tremble while tracking the light at a certain point and concludes the driver failed this test.  The officer then conducts the "walk-in-line" test and the "one-legged stand" test.  The officer concludes that the driver has failed these tests and takes the driver to the police station.  The police officer then offers the driver the opportunity to have his breath analyzed for the presence of alcohol and hopefully (at least from the perspective of the driver) the driver refused to take the test.  The driver bonds out of jail the next morning and begins the process of hiring a criminal defense lawyer.

If, contrary to my hypothetical, the defendant gave a breath specimen and failed, it is more difficult to win the DWI case.  DWI defendants are acquitted in "breath cases" but not nearly as often in "refusal" cases.  Claims that the machines are rigged, or that a jury is easily persuaded that the machines are invalid, should be taken with a grain of salt.  If the test shows that the driver is close to the legal limit, our firm has successfully argued that at the time the driver was stopped his body had not yet absorbed a sufficient amount to have crossed the legal limit.  Sometimes when the test shows that the driver is way over the legal limit, but the video nevertheless looks good, one can argue that the test must be inaccurate.

DWI "third" trials are difficult cases.  Unfortunately for the defendant, the jury will be informed of the prior DWI convictions, and likely will, in what would otherwise be a close case, see a pattern in the defendant's behavior giving the State an edge.

It should always be borne in mind in a DWI case that a picture (or video) is worth a thousand words.  The biggest single factor that will determine the outcome of a DWI case is how the defendant appears on video.   DWI's are unique in that the jury does not have to rely on the judgment of a police officer or some other eyewitness, but get to rely on their own judgment in determining whether the defendant is guilty.  A bad video, one in which the defendant is clearly swaying or has slurred speech, for example, is difficult to win.  Sometimes evidence that the defendant suffers from a medical condition can explain what otherwise would appear to be signs of intoxication.

Even if the defendant looks good on video it the State may be able to secure a conviction if the police officer is able to credibly explain why she concluded the driver was intoxicated.  It should be borne in mind that the jury will be instructed that the offense is committed if the driver was influenced by alcohol to the extent that the driver's mental or physical faculties were no longer "normal."  "Normal" is not defined for the jury.  The important thing to remember it that it is not a "driving while drunk" charge.  I think most juries get the distinction between driving while intoxicated and driving while drunk, but client's often struggle with this distinction.  It is not uncommon for clients to insist that they cannot be guilty because they were not "drunk," despite the fact that the jury can, and often will, find them guilty even if they think the client was not "drunk" but merely "intoxicated," as the term is defined under the law.  Statistically, about 50% of DWI trials result in an acquittal and most cases that go to trial have good videos.  When the video is good, variables such as   the credibility of the police officer,  the appearance of the defendant, and the quality of the lawyer all become important factors.

Despite the fact that the mere appearance of the defendant can be an important factor, defendants in DWI trials rarely should testify.   Usually, they have made admissions while being questioned that will fuel an effective cross-examination by the State.  For example, if the defendant admitted to having had a couple of drinks, it is difficult to fend off questions about the effect those drinks would have had on the defendant.  If sobriety's is normal, it is difficult to contend that one is normal after having had a couple of drinks. 

Finally, it should be noted that in many counties there is little penalty for first time DWI defendants to go to trial apart from any additional legal fess that they may ensue.  Often the punishment for pleading guilty to a first time DWI is the same the judge will impose if found guilty after trial.

At our law firm we have had numerous successful results recently in DWI cases without going to trial.  We have negotiated pleas to a non-DWI traffic offenses to which our clients only had to pay a small fine.

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.