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We had the case in the bag. As a young prosecutor, I was helping another colleague in the trial of a career criminal/violent offender accused of armed robbery. The evidence we had presented was considerable and compelling and we had just called our last witness, a cop. I didn’t think we should have called him to testify. After all, his entire role was to show up at the scene after the fact and then haul the guy off to jail. He didn’t have any role in the investigation. But who was I to make a decision like that? This was my partner’s case and I was just helping out, happy to get the trial experience.

The officer took the stand and my colleague asked him a few questions about his role transporting the accused to jail. As I expected, the cop’s answers added nothing exceptional to our case. When my partner finished his line of questioning he asked the judge if he could have a moment to confer with me. “Absolutely,” the judge said.

When he came over to the prosecution table I whispered vehemently “That’s all. You covered it. Let the defense have him and then let’s rest.”

My client was facing a life sentence for burglary with an assault and armed robbery. She had been a prostitute most of her life, and had been labeled a “Habitual Violent Offender” by the prosecutors, based on her extensive criminal record. The charges stemmed from an incident in which she and a friend allegedly entered the house of one of her clients and held a machete to his throat while the friend took his wallet. She could get life.

I was both excited and a little nervous about taking this one to trial because we would be before the infamous Judge Ellen “Maximum” Morphonios, known for her penchant for dishing out thousand-year sentences. She had been profiled by both “60 Minutes” and People magazine and had sometimes exhibited bizarre behavior. After sentencing a rapist to a life sentence, she reportedly stood up and lifted up her robe, revealing her rather shapely legs, and remarked, “That’s the last time in your life that you’re going to see a pair of legs like this.” Another story involved a defendant’s mother, who cried so hard that she passed out on the floor. Morphonios continued the court’s business, announcing “Next defendant. Step forward. Step over the body.”

It was evident at the outset of our trial that the judge had taken a liking to the victim, who was in his late 90s. Testifying through a Spanish interpreter, the victim revealed that he had been paying for the sexual services of my client three times a week for several years. They had engaged, he said, in both oral and regular sex.

Remember the show “Happy Days?” The Fonz could never say one particular word. Even when he knew he made a mistake he couldn’t admit that he was “wrong.” He’d attempt to say it: “I was wroooo…” He never could quite enunciate the word clearly. For some reason, Fonzie had some internal blockage with saying the word “wrong.”

Ryan Lochte, apparently, doesn’t have a problem saying that word but, like Fonzie, he does have a problem saying another word.

During his recent interview with Matt Lauer, Lochte admitted that he was wrong and that the incident at the Rio gas station was his fault. However, neither in his press release that he posted on Twitter nor in his Matt Lauer interview did he ever admit that he “lied.” Rather, in his release, he wrote that he needed to be “more careful and candid” in how he described the events. To Matt Lauer, he stated “I over-exaggerated that story.” Well, yeah, that he did too. However, he just couldn’t come out and say he lied, even though that’s what he did. He told several lies. For example, he never had a gun pressed to his forehead and cocked like he initially stated. He never faced armed assailants flashing police badges, like he alleged. Those were LIES!

INTRODUCTION

The discussion began almost immediately after the abhorrent Orlando shooting took place. Should the shooter’s wife face criminal charges? Even before details were released concerning her alleged involvement, numerous members of the “Court of Public Opinion” were passionately crying out for her arrest, believing that she had to have known of his evil plot and/or must have participated in some way. So why hasn’t she been arrested up to this point?

ANALYSIS

Cops demonstrate their inherent bias through the charges they choose to level. Let’s talk about Sheila and George. Sheila was the trusted bookkeeper for a very successful company. Unfortunately, she wasn’t as trustworthy as the company thought. Over a period of two years Sheila diverted $350 a week of company receipts to her own bank account. George, on the other hand, was a successful black businessman who traveled abroad a lot. On one trip to China he came back through customs with a box full of DVDs. He had the receipt to show that he had paid for them, but customs declared them counterfeit and arrested George.

Sheila could have been charged with approximately one hundred separate counts of grand theft (the amount of each theft over the two-year period was in excess of $300) and could have faced up to five hundred years in prison. Fortunately for her, she was charged with one count of organized scheme to defraud. That’s a first-degree felony punishable by up to 30 years in prison and, in fact, she got off with just probation. Because she was only initially charged with just one criminal offense, her bond was very reasonable. George, on the other hand, could have been charged with just one count of dealing in stolen property. If convicted, he would have faced a maximum penalty of 15 years. Instead, for reasons I still don’t understand, law enforcement threw the book at George, charging him with a separate felony count for each of the several hundred DVD’s in his possession, subjecting him to a possible life sentence. His bond was actually over a million dollars before it was eventually reduced. He escaped the worst, but still went through hell and paid a huge price, both psychologically and financially, before the charges were dropped.

* * * * *

This ruling is epic! The United States Supreme Court ruled this week that Florida’s death penalty law is unconstitutional. The highest court in the land found, amongst other things, that Florida courts were violating defendants’ Sixth Amendment rights by ordering death in the manner in which they were.

What the court had a problem with was the fact that judges, not juries, were the ones making the ultimate decisions in capital cases. While jurors deliberated and made a recommendation to the judge, the judge would decide on his/her own whether the person should live or die. The Court found that a jury’s mere recommendation is not enough.

The ruling was good news for Timonthy Lee Hurst, who was convicted of stabbing his co-worker in 1998. His case will now be remanded back to the lower courts to decide what his penalty should be. It will now be exclusively up to the jury to decide his fate.

No. There you have it. All my clients aren’t innocent. No beating around the bush from me. I won’t give you that frequently offered smug line, “All of my clients are innocent…until proven guilty.”(Even though they are legally innocent) As a criminal defense attorney, I do represent numerous “guilty” clients. “How can you defend those guilty people?”, many have asked. The answer is, “It’s actually easier to defend someone who is guilty.”

To understand what I’m saying, imagine someone you care about was accused of a crime that she/he did not commit. Imagine feeling powerless over the police, prosecutor and judge. You want so desperately to make the charges go away, however, you can’t. Sleepless nights, stress, and anger all accompany this living nightmare. Who do you turn to? Me. While I can’t guarantee any particular result, I take on representation of your innocent loved one with the promise that, “I will do all that I can do obtain the best possible outcome under extremely challenging circumstances.” In spite of indicating that you understand that I cannot pull a “David Copperfield” and make the charges disappear, you don’t really want the “best possible outcome.” In your mind, anything short of the charges being dropped would be a miscarriage of justice. Well, that energy and pressure falls on me. While I’m always up for the challenge, I nevertheless am constantly feeling the daily pressure to keep doing the next right thing in order to obtain justice for my clients. One of the many initial challenges that I face in dealing with innocent clients is that most prosecutors and judges don’t believe that my client is innocent. You ask, “But what about the presumption of innocence?” Ha! That only exists in cheesy television law dramas. In reality, most prosecutors and judges believe that if a person was arrested, they must be guilty. Similarly, most potential jurors typically share the same philosophy. I prove that every time I’m picking a jury at trial. Invariably, I ask the following questions: “Have you ever driven by the scene of a crime and seen someone who had been handcuffed by police?” (After most jurors respond, “Yes”) I next ask, “Let me guess, your thought at the time was, “Why are they arresting that sweet innocent person?” Many jurors laugh at loud after hearing me say that. I then say, “That’s not how you feel. Rather, you think, What did that guilty person do?” I then challenge them with the following, “Knowing that my client was one of those persons who once wore handcuffs and was brought to jail, just like those arrested persons you’ve seen in the past at the scene of a crime, how can you believe that he is innocent? (As the law requires) I study the looks on their faces. The ones who give me a, “You make a good point” look, I move to strike. The ones who fire back with, “Well, just because their arrested and handcuffed doesn’t mean their guilty,” are the jurors who I want to hear the case.

The feeling of fighting for an innocent client and ultimately being able to get the charges dropped by prosecutors is a spectacularly rewarding experience that is almost indescribable. I feel like I’ve been a part of something wonderful. My feeling after jurors acquit my innocent clients is a bit different. Instead of feeling relief after the not guilty verdict, I am often consumed with anger. I think, “You see prosecutor? This case never should have gone to trial. You should have dropped these charges. My client shouldn’t have gone through the extraordinary financial and emotional strain of a trial. You should have done the right thing months ago when I passionately pleaded with you and shared evidence that supported innocence.”

I try not to do fear. Yes, taking on fear is a choice. I tell myself that fear is nothing more than an acronym meaning “False Evidence Appearing Real.” Still, this Ebola outbreak has me rather concerned, with good reason. It’s the largest Ebola outbreak on record. Health officials are struggling to identify how many people have had contact with Thomas Eric Duncan, the Liberian man who is now undergoing treatment for Ebola in Dallas, Texas. The thought of how many, coupled with the ripple effect, could justify the fear that so many are feeling at this moment. It is in large part due to that fear that so many are calling for vigorous prosecution of Duncan, in spite of the fact that he is currently in critical condition. Should he be prosecuted? The answer is, “Definitely…maybe.” It all depends on what reported facts are true.

Liberian officials have already made the aggressive move of announcing that they intend to prosecute Duncan. They passionately believe that during an airport screening in Liberia, he lied about having come in contact with someone who was infected with Ebola. Duncan claims that while he helped a woman to a taxi, he believed that she had a pregnancy-related illness. According to the AP, that woman later died of the Ebola virus. Duncan was able to pass a screening at the airport in Monrovia because he didn’t demonstrate any fever and/or other symptoms associate with the virus. What is not in dispute is that Duncan did get sick just several days after arriving in the U.S.

If Duncan knew that the woman that he came in contact with had Ebola and then lied about it, he should be prosecuted. If, as he alleges, he didn’t know that she had the virus, then they need to back off. Proving that he knew that her symptoms were that of Ebola and not pregnancy related as Duncan alleges, will prove to be a challenging task.

Most of us have said it and/or thought it, at some point. “Why the hell does it take so long to kill death row inmates?” In some instances, it literally takes several decades from sentencing to execution. Many have called this a miscarriage of justice. The majority of Americans want the process to speed up. For one North Carolina death row inmate, had the public gotten their wish, he would have been put to death a long time ago. Had that happened at our insistence, then today there’d be blood on all of our hands.

The longest-serving North Carolina death row inmate and his half-brother, who was serving a life sentence have been declared “innocent” by both the judge and prosecutor now handling the case. They had spent more than 30 years in prison for a rape and murder that they did not commit.

Leon Brown and Henry McCollum were just 15 and 19 at the time they were arrested for the abhorrent crimes in 1983. The victim was just 11-years-old.

Here’s another one.  Another story from the criminal arena that will have you shaking your head.  A 19-year-old man from Austin, Texas chose to make and sell brownies and now is facing up to life in prison.  OK, so I’m leaving out a few details.  He laced the baked goods with additional “ingredients” that were intended to get consumers “baked.”  Because he added marijuana and hash oil to the mix, he faces a felony charge with outrageous possible sanctions.  Welcome to Texas.

Texas law enforcement found at the offender’s apartment 1.5 pounds of brownies, digital scales, a pound of marijuana, approximately $1600 in cash and dozens of baggies with hash oil and marijuana.  Police came to his apartment because they received complaints about “marijuana use.”

In Texas, possessing 4 grams of hash oil is enough for a first degree felony charge.  Apparently, this defendant, who had never been arrested prior to this bust, had 145 grams of hash oil.  Hash oil possession results in much more severe sanctions than marijuana.  The THC level in hash is much higher than in marijuana.  It’s actually in the same penalty group as amphetamines and ecstasy.  Additionally, because the defendant used hash oil, prosecutors are permitted to add up the total weight of brownies and tag him with manufacturing and distributing 1.5 pounds of that substance.