Let the Client Explain It on the Stand

You do not always have the option, in criminal defense law, of putting your client on the stand. Sometimes the prior record of your client, which can be brought out, is entirely too prejudicial to let the jury hear. However, if you can, I believe it is always a good idea. This echoes the sentiments of the late and great Edward Bennett Williams, who was also a proponent of letting the client explain on the stand what happened .

I once was able to get a not guilty verdict for a client who was charged with refusal DUI (refusing to take the DUI test, which gives you a conviction the same as if you had blown over the limit) and possession of marijuana, but not an open container violation by putting my client on the stand and letting him tell his version of the facts. (In a Mississippi "dry County", you may transport alcohol only if it is closed and sealed. Having an open container of alcohol is a crime in those counties.)

Russell, my client, was pulled over in Rankin County and refused to take the DUI test. They found an open beer in his car, along with some marijuana. We went to trial in the case before a notoriously strict judge in a very pro-prosecution Mississippi County. However, Russell had a reasonable story as to why he refused to take the DUI test. He was a black man, being arrested late at night in a white majority county by white police officer. He told the jury that he feared the actions the officer might take on the side of the road, and only wanted to be taken to an area, such as the police station, where there were witnesses. For whatever reason, they did not give them an opportunity to take the DUI test at the station.

The jury believed Russell's story. Even though, technically, he did in fact refuse to take the test, the jury believed that he would have taken the test under the right circumstances and so felt he did not willfully refuse to take the DUI test. They also found him not guilty of possession of marijuana, as he claimed it was not his but a friend's. This version of the facts, which seems on its face very weak, was believed because his credibility as a whole made that portion of the story believable. There was no way to get around the open container, as he truthfully admitted that the beer was his.

The moral of this story is that if you can put a credible client on the stand to explain what happened, do it. The jury, I believe, is predisposed towards the prosecution, wanting to get criminals off the street. They also do not understand the reasoning behind not getting up and denying the charge. Like most criminal defense attorneys, I do not believe a jury can put aside the prior convictions for crimes, particularly if they are similar crimes, and focus just on the facts of the case before them. This eliminates putting your client on if they have any type of serious record. But if there is some way to put the person on, do it, because a jury might believe "it wasn't me, it was some other guy" if the witness' demeanor and credibility is good enough.

Don't Plead Guilty if You Don't Mean It

Sometime back, I represented a bright and articulate young man who was, unfortunately, involved in the illicit and illegal drug trade. On this particular occasion, he was one of several individuals around whom a wide net had been cast. The heart of the government's case was the detailed and knowledgeable testimony of a snitch. This man named not only my client, but several others, gave details about the amount of marijuana that was being sold and distributed, dates, and the location of the sale from the larger distributor.

The young man and I discussed the strengths and weaknesses of his case, and the possibility of taking a plea bargain on the case. He was reluctant to do so, since he professed his total innocence in this matter. However, being in the drug business, he knew that going to prison was a "cost of doing business" and seemed resigned to the fact that he would have to plead so he could shave some time off his term in jail.

He always professed his innocence in this matter. He was very honest with me, and indicated that he was in fact involved in the drug trade, and had made several purchases, sales, etc. over the course of the past few years. However, he was adamant about not having participated in any of the particulartransactions the snitch attributed to him.

In federal court, when you want to accept a guilty plea, you go before a federal judge at a change of plea hearing. At that time, the judge goes through all the rights that you will be forfeiting in the event you plead guilty, the effect of the recommendation of the United States Attorney's office, and whether you are in fact guilty of the crime to which you're pleading. It's a tedious process, but necessary in order to protect the rights of the accused, and to make sure that, hopefully, a guilty person is not going to be sentenced for a crime he or she did not commit.

In any event, we were halfway through this give-and-take when my client pulls me aside. I requested a moment's conference with my client from the judge, who was not too pleased with this, but nonetheless, of course, let me confer with my client. The bottom line on that conference was he told me he could not plead guilty to something he did not do. He was willing to take his chances at trial. He was, in his own way, a man of conviction.

I announced to the judge that we were not going to change our plea after all and would go to trial in this matter. Since the trial date was already set, and several others were going to trial, we proceeded apace towards that fateful date.

We were ready to go to trial, armed with jury instructions, and cross examination questions for the snitch and any other possible witnesses, such as federal agents, etc.. Then, about two days before the trial, the real story came out.

It turns out to the snitch, in order to help with his own sentence on other charges, had concocted a beautifully crafted story about these various individuals and the drug purchases that they had made at a known drug distributor's house. Since these individuals were in fact involved in the drug trade, and this fact was known to the FBI and other federal authorities, such as the DEA, the story seemed very plausible to people who wanted to arrest drug dealers and take them off the streets. However, it was entirely made up. A good lie always has elements of truth in it, and this individual had named the right people and testified at the grand jury about their evil deeds.

After his change of story and the clearing of his conscience, the charges were dropped against my client and the others. The snitch faced new charges regarding lying to the grand jury, et cetera. I would like to tell you that my client walked out of court a free man, but that was not the case. He basically walked across the street and faced the music on state charges about a different drug matter, for which he was actually guilty. However, he was willing to accept this, in the end, as a cost of doing business in the drug trade. He actually felt very good about having the federal criminal charges dropped since they were in fact bogus. The system worked, to some degree, for him.

The moral of the story: sometimes, when your criminal clients tell you that they are innocent, they really are. Most of the time, they only keep to that story for the first two or three times and then admit to being guilty of the actual charges. It always helps when they know that their criminal trial lawyer is ready willing and able to take the matter trial.

Life in Federal Prison

Some years ago, I represented a Bandito motorcycle gang member in a federal criminal case wherein he and many of his compadres were charged with sale and distribution of crystal meth. The government's case being what it was, and the evidence being as strong as it was, everyone eventually pled out.

However, that's not the point of this post. Back at that time, you could still get paroled in the federal system. As you may know, now you serve basically day for day any sentence you receive under the Federal Sentencing Guidelines. One of the Banditos, not my client, came up for parole hearing, and did not show at the appointed time. The powers that be didn't think much about that and let it ride. A second parole hearing came up sometime later, and again this individual was a no-show. After the third time of his failure to appear, they sent for them to find out exactly what was going on. What was keeping him from making his plea to be released early?

They got in him in, sat him down and questioned him. He told them that they (the Bureau of Prisons) were teaching him to read, they had fixed his teeth, he was getting three square meals a day, and (since he was a Bandito member) he wasn't getting any grief from anybody. Basically, his life on the inside was better than his life on the outside, and he did not want to be paroled, thank you very much.

What kind commentary is that of how society is dealing with its fringe elements?