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Tips and pitfalls of criminal courts
So hopefully you did pretty well at avoiding the Ten Things Not
to do If Arrested, but now you have to navigate the tricky
waters of the criminal courts system without drowning. It’s
intimidating if you are a stranger to it, but even if you’ve
been there before, it may be frustrating and there may be better
ways to make your way through it, so I hope some of the
following will be of some use to you.
First of all, you must understand the purpose of your court
appearance. Arrange an appointment with your lawyer well ahead
of the court day so that you will know what will happen. Use an
interpreter to confer with your attorney if your English is not
good enough. You must know: Will you have to testify? Are there
documents you can bring your lawyer that will help? Witnesses
you can find? Letters of recommendation? Can you show him the
scene of the "crime?"
1. Shall I represent myself?
Well, what answer would you expect from a criminal defense
lawyer? Surprisingly, sometimes my answer is “Yes,” when a
caller tells me his or her story. I did it only last week. The
caller had a first DUI charge. His blood alcohol was high. The
police didn’t do anything wrong. The evidence was clear against
him, and I didn’t think any forensic expert testimony would be
of any help to him. I had to tell him that I didn’t think I
could do any better for him than just entering a plea and
accepting standard probation. He didn’t need a lawyer for that,
so he went and plead himself. No charge. But if you do that,
know what the penalties are in advance, whether there is any
room to bargain, and what you will have to do once on probation.
Be informed.
But if that client had asked me how he could defend himself and
fight a conviction, I would have told him he doesn’t stand a
chance by himself, innocent or not. If you are not guilty of the
crime or crimes charged, then you do need a lawyer. One favorite
trick of prosecutors is to charge the crime that was probably
committed and then tack on four more that were not committed or
are very weak. Why? So the prosecution can later “generously”
drop four charges and tell you to plead out to the sole true
charge, in plea bargaining. Your lawyer will be wise to these
gimmicks and know what to do. You have no way of knowing whether
the prosecution’s evidence is even usable in court. Can it be
excluded?
2. Shall I get the top lawyer in the County?
Maybe you should, and maybe not. What is certain is that you
should not just call 50 lawyers and pick the cheapest one. For
one reason, you can almost always find a better lawyer who will
charge only slightly more. For another, you should wonder why
he’s the cheapest lawyer in the County. For a third reason,
although obviously you have your budget, price alone is a very
poor way to select the person upon whose shoulders your entire
future rests.
If you are facing a serious felony and potentially many years in
prison, you should get the best lawyer you can find, if you can
afford it. He won’t necessarily be the most expensive. But if he
is, and you could face 20 years in prison, it makes sense to
hock everything you have if you need to. But consider the
seriousness of the charge. If your case is a misdemeanor and you
find two lawyers both with 20 years’ experience in criminal
defense and good references, and one charges twice what the
other does, then why pay more?
Consider the area of specialization too. If your charge is one
in which there is highly specialized law, you might benefit from
a lawyer who does little else than your kind of case. This
applies to drug searches, drunk driving, gang crimes, and sex
crimes.
3. How do I retain a lawyer and how do I pay?
First of all, there is no reason not to interview several
lawyers. Do internet research just like you are now. Learn about
the lawyers and their experiences. When you are ready to choose,
do not give one nickel to the lawyer in fees unless he gives you
a written fee agreement, so you know in advance how much it’s
going to cost you and what you are going to get. Does the fee
include trial? Most lawyers will want the fees entirely in
advance, but some will accept a payment plan.
It is very important that out of the interviewing and selection
process, you finally choose a lawyer with whom you feel
comfortable. Does he listen to you? Does he treat you with
respect? Does he keep his promises? Do you trust him? The bottom
line is this: The day will come that you will have to make a
choice. Take a deal or take it to a jury? Your lawyer will make
a recommendation. You need to trust him for that advice to do
any good. Here’s a good tip though. If your lawyer will earn
more by going to trial and he is advising you to take a deal,
think long and hard about why he or she is giving that advice,
no matter that your uncle Elmo is telling you.
How to pay? I suggest bringing a cashier’s check. Why? It
establishes your good faith. I once interviewed a man with
multiple check forgery charges. We talked and he decided he
wanted to retain me, so he pulled out his check book. I smiled.
What I was wondering to myself is: Why would he want a lawyer
who is that dumb? Other clients will stall payment of the
retainer until the day of court, so the lawyer will obligate
himself to defend them with the judge. Then the check bounces.
Experienced lawyers know these tricks. Inexperienced lawyers
won’t be as much use to you. It is possible that some people
stall payment out of fear that the lawyer won’t show up after
being paid. If so, then bring a cashier’s check to court.
4. How do I check up on a lawyer?
Unless you know a person who used the lawyer before, it may be
difficult to interview his or her past clients. Understandably,
they may not want everyone knowing that they had a criminal
charge, and of course their identities are confidential without
their consent. However, sometimes there are ex clients who will
speak to you. You can also consult the State Bar’s website at
http://members.calbar.ca.gov/search/member.aspx. There you can
look up the lawyer’s history and learn if he has ever been
suspended from the practice of law, where he went to law school,
and when he graduated. The lawyer’s own website may contain
useful information about him or her. If you have the time, you
could even ask the lawyer when he or she is next in court and go
observe. |
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5. Yes, neatness does count.
Clients almost never ask me this, but I volunteer it. Dress up
as nicely as you can when you go to court. The person in the
black robes up there is called a judge because he or she uses
“judgment” in performing the job. “Discretion” is another word
for it. They are just human. Some of what judges do is make
“judgments” on what a defendant will probably do in the future.
Will he show up if left out of custody at the current low bail?
Will he violate a court stay-away order? Will she straighten up
her act after this drunk driving conviction so the public will
be safe, or does she need a harder reminder of the disadvantages
of drinking and driving?
So there is a lot about your future hanging on that black-robed
person’s judgment about you, and what does he/she have to go on?
A four minute view of you standing there listening to your
lawyer? You don’t even get to talk. So what do you think? A nice
suit and tie, or business dress and heels; or torn jeans, mussed
hair and no bath?
You think I am kidding? I tell you it even applies to lawyers. I
know of a judge who actually put in writing that lawyers who
don’t shine their shoes properly can “expect not to do as well
in my court.” And that is just the judge who put it in writing.
How many others feel the same, or worse but never tell you? Free
hint: tuck the shirt in too.
6. Attitude, Attitude, Attitude.
I know. A bad attitude is better than none at all. Except in
court. I’ve seen it all. Loud yawns and stretches in court, loud
mumbles of how late the judge is to the bench, fake sneezed
noises that sound like “horseshit,” etc. You want to have fun?
Come prepared to pay for it. Do you really think the clerk and
bailiff don’t talk to the judge? They go into the back and share
donuts and coffee! Of course they talk. Intentionally
antagonizing the judge who is going to make life altering
decisions about you is just dumb, dumb, dumb. I don’t expect you
to be thrilled about being there. I just expect you to want the
result to be the least unpleasant (for you) as possible. Oh, and
please don’t be the one whose phone goes off when the judge is
talking. Turn it totally off before you walk in the door of the
court room.
7. Why do I have to be on time and the judge is always late?
He’s usually not late. He is working. Yes, the court slip says
for you to be there at 9:00 a.m. and the judge may not take the
bench til 10:00, but it’s because he is meeting with lawyers in
chambers to resolve some of the cases on the docket. The more
that get resolved that way, the more quickly the calendar goes
when it starts. Also, there are judges who will revoke a
defendant’s bail if he is ten minutes late, so don’t assume it
is okay for you to arrive late because the judge does.
8. Continuances
These can be infuriating, both for you and for the lawyers and
judges, and they happen for a wide variety of reasons. I know it
is hard on you when you take off work, only to get to court and
the case is “continued” to another date. In other words, nothing
was accomplished. Nobody likes it, but the system has a lot of
parts. All may not be ready. The judge and the lawyers may be
ready but the Probation Dept didn’t get the memo or didn’t do
it’s job and so nobody can go ahead. Sometimes the lawyer can’t
be there because an unforeseen conflict in his schedule arose. We
try to avoid those, but it happens. Lawyers do have more than
one case (you’d hope, wouldn’t you?).
On occasion I have seen my time wasted (yes, mine too. I don’t
get paid any extra on a flat fee basis when it happens) by the
Court Clerks’ Office making a mistake in setting my case on
calendar. Wrong date. Wrong department. It can be frustrating.
But on occasion, a case just isn’t going toward resolution like
one might wish. There is a log jam. I am convinced that the
District Attorney’s demand for settling the case is totally
unrealistic and too severe. They won’t budge and neither will I.
In such cases sometimes a continuance breaks the log jam. It’s a
new D.A. next time, or something else changes and you get the
deal you can live with.
9. What is with the prosecutor on my case?
I have asked that question many times myself. Usually not, but
sometimes you may find one who is just abrasive, obnoxious, and
difficult to do anything with. So can’t we get rid of him or her
and get a new one? No, we can’t. The law allows us to exclude
one judge from your case without even giving a reason, but we
have no such right about the prosecutor. Sometimes indirectly,
if the court department changes, the prosecutor who handles the
case changes too.
10. What is with these people who bring their whole tribe to
court?
They’re smart, that is what is with them. One thing all judges
know is that the person whose family is 100% involved and behind
him is the one most motivated to straighten up his or her life
and never come back with a new criminal case. That is the kind
of person the judge may be more likely to take a chance on (or
another chance) and give a break.
So I hope some of this helps you through the system. It is not
designed to be stress free. Quite the contrary, but it might
make it easier if you understand that the long delays and the
“side bar” conferences between the judge and lawyers is not some
plot to stick it to you. Sometimes we just want to tell the
judge something that is either not technically a proper
consideration for a legal decision, (“His wife has polio,
judge.”) but I still want the judge to know, or maybe it is
something private (like my own doctor’s appointment).
Talk to your lawyer. Ask about things that you don’t understand.
Find out why delays are happening and if anything can be done?
If it’s a misdemeanor, can you just stay away on some court
appearances? The law allows this. Your lawyer may or may not
wish to do this for strategic reasons, but it won’t hurt to ask.
It’s not an option in felonies.
Good luck, and comb your hair! |
