How Should My Lawyer Defend Me?
David M. Lamos
Attorney at Law
805 Delaware Ave
Fort Pierce, Florida 34950
772-464-4054
www.DavidMLamos.com
Learn How Great Lawyers Defend Cases
Learn the Four Phases of Defense Planning
Learn How to Identify All Possible Defenses
Learn How to Get a Better Sentence
Learn How to Get a Complementary Strategy
Session
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Warning and Disclaimer
This writing is informational in nature only. You must do your own due diligence and take personal responsibility to ensure that following any of the law or ideas expressed here remain valid. If you use this information without doing your own homework, then your use of this information could cause you legal or possible disciplinary problems. There may be errors or omissions in any abridgment of the law. This writing is not legal advice. It is legal information. For legal advice, consult a qualified attorney who can help you apply the law to the specifics of your case and then give you advice for your specific situations. This booklet does not create an attorney-client relationship between the reader and the author or anyone else.
People Should be Defended; Not Just Processed
Persons charged with crimes want to be really defended. They don’t want their cases to be processed. In every large system like a public defender’s office, there must be certain “administrative processes because of the high volume of cases these offices normally handle. It’s unavoidable.
Because of their staggering caseloads, some lawyers view responsibilities differently and may not be the same as working with a private attorney. For example, typically, a public defender won’t begin “defense” until you are “formally charged”. Then, after you are charged, you will have “Arraignment”. This is a critical stage in any criminal case. Many see arraignment as a formality, but in truth, it is the right to see your formal charge or have it read to you, so you can know about the charge in detail and have time to decide how to plead (whether guilty or not guilty). Many lawyers routinely waive the arraignment and request a jury trial often before they and client have even met. It is true that often a public defender “investigator” may a brief appearance to take some notes from the client while he or she is in jail, but often persons in jail sit for weeks before even personally meeting with a defender. Defenders are often
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constantly stuck in court or in depositions where they cannot easily read and consider a case file in peace and quiet. As a result, the cases may be routinely continued again and again as the public defenders try in good faith to process the information over time. Given enough delay eventually, the defenders may begin to comprehend, but defenders offices remain as they have for many years; overworked and underfunded systems that rely on state attorney and police generated information for their basic discovery and legal information.
The systems functions without being “client centered” with clients often isolated and remote from the defenders. Some public defender offices more resemble factories where files are assembled and client input is secondary. It is simply a reality. Now this is not necessarily unique to public defender offices. It can happen with busy private lawyers too. This can be for several reasons. First, the legal services market is competitive. Clients shop for “price” thinking that “a case is a case” and “a lawyer is a lawyer”. They seem to think that hiring lawyers in law case is like buying shoes. You go to a store, see the shoes and if you like them you buy them. But shoes are a known quantity. Law cases are not. There are too many variables that cannot be known in advance. Does the client have a prior criminal record? Do they have a “state oriented” judge assigned to the case? (A nice way of saying that the judge often sides with the state attorney’s office). Most criminal court judges in my area were former prosecutors. Few ever defended anyone. Moreover, in my experience criminal trial judges over time tend to get overwhelmed by what they see. They do see a lot of career criminals and some truly horrible cases that are too troubling to discuss here. It’s easy to get jaded and callous. In truth, society needs to protect itself from some criminals. They are predators. But they are few in number compared to most persons in the system. But, once you see enough horror it’s hard to get it out of your mind and many judges experience burn out like anyone else. This is where a real defense attorney can make a big difference. To get different results you have to be different. You have to first care about your client. If you don’t care about your client then you can’t make anyone else care about them either.
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Another variable is who is the prosecutor handling the case? Some are reasonable. Many are not. Some you can reason with quickly. Others you have to “persuade” by fighting a few rounds before they realize you’re not a push over. Preparation is the key and having a lawyer that does not carefully study the person, the charges, and the case while also taking the time to educate the client on what different defenses and approaches the law allows are is simply processing and not adequately defending. You have to do the work. If your lawyer is not digging deep then chances the case is getting “processed” rather than defended.
In the course of discussing a case with a client, another critical thing happens. The lawyer may sense whether a client has “issues” thereby discovering that the client’s personality may be affected by other things including a history of physical, sexual, substance abuse, physical and/or mental health issues that can result in additional defensive ideas going to what we call “exposure”. Exposure is a fancy way of saying how much punishment a client could receive. If you can get a good sentence even if the charges are legitimate then things may be OK any way. This is called “mitigation”. It takes time to get a handle on such things. When this kind of time is not taken then undue pressure is put on the client and bad things can result. In haste, a defender or less invested lawyer may take the “the state made you this offer, and you could get the maximum if you don’t take it” approach. This type of talk should not occur, if at all, until AFTER a competent investigation of the facts and all possible legal defenses and mitigation of sentence issues have been discussed and ruled out. This is real defense. It’s not that there are not some “bad cases” but whether a case is one of those rare few can only be decided AFTER the hard work of case analysis and preparation is done. It can’t be done overnight and it certainly cannot be properly done remotely.
Proper Preparation of Defenses
The best criminal defense attorneys all do the same thing when they set out to defend their clients. They prepare. It is hard work and there is no magic involved. First, they try to understand the
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case from the perspective of their opponent. Many good defense attorneys were former prosecutors. I was one very briefly before being hired as an assistant public defender. I also mentored with a colleague who was one of the best prosecutors you will ever know and who is to this day a master trial lawyer. He is too modest to be named here. I also worked as a law clerk for the late Nicholas Smith in Detroit, Michigan. He taught me that “a client is not a file folder” and he was a great example of a real lawyer from times gone by. Gaining an understanding of how to prosecute and to defend cases is essential. Any real trial lawyer being fully prepared lawyer should be able to walk into a courtroom to start a trial and then be able to “swap files” with his adversary. He or she should be able try the case from the position the adversary with the same level of effectiveness.
Most modern prosecutors I know couldn’t easily do that. Most are “tribal” and too closed minded to understand that the skills of lawyering are not “liberal” or “conservative” or any other stupid label you might put on them. These prosecutors lack professional detachment and are often unable to leave their personal biases aside. This is a true weakness and worse. Some protect unprofessional police from being exposed when they should be grateful to learn what really goes on. I invite anyone to visit “The Innocence Project” online. The Innocence Project, founded in 1992 by Peter Neufeld and Barry Scheck at Cardozo School of Law, exonerates the wrongly convicted through DNA testing and reforms the criminal justice system to prevent future injustice. According to Wikipedia government misconduct, inadequate legal counsel and the improper use of informants also contributed too many of the wrongful convictions since overturned by the Innocence Project. Ethical prosecutors should want to see the wrongly accused set free. However, many prosecutors view everything they hear from the defense as “excuses” or even lies. To some they cannot imagine that the police have the wrong person and therefore they too are complicit and become part of the problem and not part of the solution. That’s why I use the word “tribal”. It connotes a primitive mindset.
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Good doctors treating patients don’t care if the patient is a good person or not. Neither do good mechanics care if the customer is a good person or not. They seek merely to correctly diagnose problems and then form treatment plans that fix the issues presented. It’s that same level of professional detachment that gives great lawyers have and where they get their edge. In short, in the words of Al Pacino playing Michael Corleone in “The Godfather”: “It’s not personal, it’s strictly business”. In a nutshell the best lawyers first work to understand how the opponent will likely try to prove the case against their client and then devise a plan to defeat the opponent’s anticipated strategy.
Defense Should be viewed like a Sport
Great players and coaches in sports study game films of their opponents. During games they make adjustments in their play based on what they learn and experience. Have you ever noticed that great football teams who win the opening coin toss often defer getting the ball till the second half? This is perhaps because the first half is used to learn about the opponent’s strengths and weaknesses. The halftime break is used to discuss and make adjustments so that in the second half the team can start to capitalize on the weaknesses that were learned in the first half. In short, the learning of the other’s strengths and weaknesses can be used to modify and project a game winning strategy.
In lawyering the “game film” is back office study, contemplation, and possible deposition and pretrial motion practice. I like to think of deposition and motion practice in military terms. Reading discovery, investigation, thoughtful depositions and motion hearings are like reconnaissance to manage the anticipated battlefield. Successful motion practice is like an artillery barrage that comes before the opening offensive. The opponent begins to get softened up, and even though they likely know something is coming, they should never know exactly where the main attack will come from and ideally they should be surprised when it actually occurs. In law this is where secrecy is most important. Often actual deception will be used to hide the true intentions of the defense. I have known of defense attorneys
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who have negotiated for months while emphasizing certain points and claiming one set of reasons why the other should give in only to see a trial that comes from an entirely different direction and which takes the opponent by near-total surprise. Using a civil case for example; fraud and breach of contract claims are often brought together in one complaint. I have seen a Plaintiffs’ lawyer spend lots of time sending interrogatories and taking depositions showing his opponent what appears to be clearly a breach of contract claim only to see that once a jury was seated the Plaintiff come out with guns blazing on a fraud charge with hardly a mention of a breach of contract. The result is the opponent is caught flat footed and ultimately knocked out.
So, it follows that the first half of criminal case preparation is spent analyzing the opponent’s case. The analysis centers around the charging document, witness list, discovery exhibit, arrest papers, witness statements, documents, CDs, DVDs, and other discovery that are available. This is the functional equivalent of game film and after this information is read and fully considered then additional procedures can be considered, i.e. depositions, legal motions in limine or to suppress evidence, more defined defense investigation, etc. Sticking with the football analogy, this is like deferring to the second half. However, no one really knows for sure if and when a trial or settlement will occur until toward the end of the entire process. A good defense brings on pressure and as a law professor I once said in class: “Pressure makes diamonds.”
Most cases end without trials because analysis shows sober advocates the anticipated damage to either the state or to the defense case during a period of pretrial preparation. When the defense starts being perceived as having an edge then good settlements and/or reduced or dropped charges can result. It’s often a long and grueling process, but properly done, the system often does works well and justice (concessions and adjustments) usually prevails. The obviously guilty are often properly convicted. The more doubtful cases are weeded out, settled, or dropped. But danger occurs when the processes of proper defense are not followed. Inexperience, laziness, and/or lack of
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integrity can occur. I have seen some prosecutors negotiate cases “in bulk” rather than on a case by case basis. Ten cases can be settled in one meeting with one side reminding the other in one case of how they gave in on another and are now expecting a payback. It’s often subtle, but these type of things have occurred.
Warfare, Secrecy, and Deception
“Let your plans be dark and impenetrable as night, and when
you move, fall like a thunderbolt.”
Sun Tzu: The Art of War
Another key to great defense work is keeping your eyes and ears open and your mouth shut. Many lawyers upon seeing a possible weakness in the state’s case run right to the prosecutor and start talking (or worse yet emailing) about it and begging for concessions. They educate their opponents about what they possibly never realized or considered in the first place! The prosecutor then often puts this information into the ears of the arresting officer or detectives and somehow more often than you would ever expect “the story changes”. Police are like banks. They often will admit mistakes, but those mistakes are almost never in your favor and on the witness stand damage control can often be seen in the form of “new” explanations. That’s why it’s also important to not share your written discovery with anyone in a jail or to discuss your case with anyone but your lawyer and if you or a loved one are in jail NEVER discuss your case on any jail phone call. These calls are recorded and they are monitored. By using the jail equipment you consent to this. Prosecutors and police order and listen to these calls and the admissions unknowing people make can be devastating or at least make things more difficult for the defense. Don’t fall prey to this and keep your thoughts to yourself.
The Four Phases of Case Planning
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Phase I: Can the State Prove Legal Guilt?
Here are the steps I take to understand your case:
1. I Read the Charging Document;
2. I Read the State's Discovery Exhibit;
3. I Read of all available written discovery, police reports, photographs, exhibits, and carefully review and compare any audio/visual evidence with written evidence and reports.
4. I review the Florida Standard Jury Instructions for each charge;
5. I anticipate the State's case and what I expect the prosecutors opening statement will be;
6. I identify the possible "Categories of Defense" and supporting strategies that may apply to each charge. More than one can apply to any charge:
A. It did not happen. (But carefully consider motivations as to why would someone say it did happen.)
B. What happened is not a crime. (Although it may be
foolish behavior);
C. What happened is not the crime charged. (Although it
might be a lesser or different crime);
D. The person charged with the crime did not do it. (Alibi, misidentification, alternative suspects, etc.);
E. The law legally excuses the behavior or there is legal
justification for what happened. (Insanity, duress,
infancy, senility, necessity, entrapment, etc.);
F. The state can't convincingly prove it. (Reasonable
Doubt, Failure of the Burden of Proof, Incredibility of Witnesses, Technical Defenses, etc.);
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G. Admitting the Act in Whole or In Part. (This can often
change the focus from whether or not things happened to why the things happened. Prosecutors in this case lose their “white hats” when it starts to appear that police investigation, police ignoring or minimizing alternative suspects and/or evidence are developed or suggested. When this happens this and other pesky little factors can get people acquitted or convicted of lesser offenses.
H. Technical Defense: Possible exclusion of evidence by
Motions to Suppress, Dismiss, in Limine’, or Legal Objections;
I. Consideration of possible sentence reducing strategies; consideration of possible bench or sentencing trials where admitting and explaining the acts are potentially less time consuming and may be more helpful. Expert testimony and mitigation of sentence are be considered along with possible mitigating departure grounds from the Florida Sentencing Guidelines.
Phase II: Identifying Possible Defenses The law of crimes is traditionally broken down into categories by the types of crimes charged: Crimes against Persons, Crimes against Property, Crimes against Places, Inchoate (incomplete) Crimes, Aiding and Abetting, and more. The state must prove all the facts and all the elements of all cases beyond a reasonable doubt. Elements are like ingredients of a recipe. If the state cannot convincingly prove up all ingredients of the legal recipe then the charge is not proved. Below is an incomplete list of possible defenses that may exist in cases. Now this list is a mix of “law school” categories of defense. However, Florida’s standard jury instructions supply the actual law on this. Nevertheless, the following list is helpful as it organizes analysis and makes it systematic. Once I identify the possible defenses below I simply locate the corresponding instructions in Florida
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or whatever other state the case may be from. For example, in Florida Self Defense or Defense of Others is called “Justifiable use of Deadly or Non Deadly Force.” They are the same concepts but use different words. Here’s a list of possible defenses:
Failure to Prove All Elements;
Failure to Prove Identification;
Failure to Prove Venue;
Insufficient Circumstantial Evidence;
False Accusation;
Heat of Passion;
Self Defense;
Defense of Others;
Defense of Property/Stand Your Ground
Resisting Illegal Arrest;
Provocation;
Mistaken Justification;
Consent;
Legal Insanity;
Involuntary Intoxication;
Medication;
Infancy;
Senility;
Causation;
Lack of Knowledge, Intent, or Participation;
Independent Act of a Co-felon;
Heat of Passion;
Lesser Included Offense;
Conditional Threats;
Good Faith Belief;
Mistake of Fact;
Reliance on Advice of Counsel/Accountant;
Diminished Legal Capacity;
Necessity/Choice of Evils;
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Phase III: Considering Technical Defenses
One can use the above processes to anticipate legal objections and technical defense issues. Another systematic method that can be employed is using Criminal Law, Criminal Procedure, and Evidence Law “Flowcharts”. These are actually law school study tools, but when it comes to identifying issues, there is nothing better. If it works on bar exam questions it will work in your case. This analysis can lead to legal issue identification and to motions to suppress evidence, confessions, statements, identifications, or motions in “limine”. These are essentially written objections filed pretrial to limit evidence based special statutes or on particulars of the Florida evidence code. These methods are the hallmarks of excellent defense work and the court hearings that follow these procedures often must be evidentiary in nature, and the state may be caused to also respond in writing to these legal motions and objections. As noted above this is all reconnaissance and can also help to set in motion meaningful negotiations.
Phase IV: If Legal Guilt is Likely Then Seek
Reduced Punishment
When a person is likely to be found legally guilty the focus changes from a defense of the charges to working to get the client a lesser sentence. Sometimes in these cases one may consider having a jury trial anyway just so that a jury might consider “pardoning” a person but also to show a judge that although the person is legally guilty that the human factors and sympathies of the case show reasons for the behavior that may be “understandable” even though the behavior is not legally justifiable or excusable. For example, a client who becomes violent because he or she discovers a lover has used them and then lied to them about it may form some basis to understand anger and rage. If one can understand why things happen one can sometimes see reasons to give mercy.
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Good judges can weigh and balance these things and may give weight to why people behave as they do. People can get violent or do illegal things because of love triangles, discovering their property, private information or images have been taken or used, etc. The reasons can be many. These facts can be used to support what are called “mitigating circumstances”.
Below is a list of mitigating circumstances that Florida law recognizes. If a court accepts one or more of these reasons allows a judge to depart below the recommended Florida Sentencing Guidelines. Note the following from the following statute: “Mitigating factors to be considered include, but are not limited to, those listed in subsection (2) below:
921.0026 Mitigating circumstances.—this section applies to
any felony offense, except any capital felony, committed on
or after October 1, 1998. A downward departure from the lowest permissible sentence,
as calculated according to the
total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2). The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review.
(1) Mitigating circumstances under which a departure from the
Lowest permissible sentence is reasonably justified include, but are not limited to:
A legitimate, uncoerced plea bargain;
The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct;
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The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired;
The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment;
The need for payment of restitution to the victim outweighs the need for a prison sentence;
The victim was an initiator, willing participant, aggressor, or provoker of the incident;
The defendant acted under extreme duress or under the domination of another person;
Before the identity of the defendant was determined, the victim was substantially compensated;
The defendant cooperated with the state to resolve the current offense or any other offense;
The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse
At the time of the offense, the defendant was too young to appreciate the consequences of the offense;
The defendant is to be sentenced as a youthful offender;
The defendant’s offense is a nonviolent felony, the defendant’s Criminal Punishment Code score sheet total sentence points under s. 921.0024 are 60 points
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or fewer, and the court determines that the defendant is amenable to the services of a post adjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence. For purposes of this paragraph, the term “nonviolent felony” has the same meaning as provided in s. 948.08(6);
The defendant was making a good faith effort to obtain or provide medical assistance for an individual experiencing a drug elated overdose.
Except as provided in paragraph (2)(m), the defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor under subsection (2) and does not, under any circumstances, justify a downward departure from the permissible sentencing range.
Getting Help: Complementary Strategy Sessions
I offer one complimentary strategy session for potential clients. Clients in custody usually incur a small evaluation fee. Our sessions generally follow the format of this booklet. After the complimentary strategy session I often recommend hiring me to conduct a detailed assessment or if a client has already hired a lawyer and is suffering a loss of confidence to obtain a second opinion.
Assessments, Second Opinions, and Hiring Us
Assessments and getting second opinions are great investments. The investment is less but the payoff can be huge. It allows the lawyer and client to develop a relationship and if you like the results of the work then you can consider hiring us based upon deeds done as opposed to salesmanship.
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Any fees paid for assessments and second opinions will be credited toward our retainer fees if you ultimately hire me to represent you. Assuming yours are a not unduly complicated case (as opposed to white collar crimes or lengthy records cases or other high-profile matters) your written discovery is likely to be approximately 40 pages or less per case and if you don’t have copies of all your written discovery then we can make some initial judgments based only upon available public records which can often be downloaded from the clerk of courts websites and after speaking with you.
Even if you don’t ultimately hire us to handle your case completely these assessments and opinions can still be helpful to because they provide you with suggested approaches your lawyer may not have considered. For example, many lawyers assume that if they speak to you and if you can understand and speak back to them that your personal history and background are of limited help to them in defending your case. Nothing could be further from the truth.
People are complex and their life experiences often tell their stories. I once was defending a young woman who was charged with burglarizing a home of her lover and then striking him when she discovered him cheating. The charge is serious: burglary with an assault. Again, underlying this is the fact that she found him in the act of cheating on her. At first reading, I had trouble figuring out how I might help her. However, once we developed rapport she told me that her father had cheated on and beaten her and her mother. This affected her Mother to the point where her mother became alcoholic. The client carries deep scars formed in adolescence about betrayal. Now that I learned there are deep psychological issues under the otherwise normal appearing surface of this person I knew what to do. A good expert witness examination and a psychological assessment helped make her behavior more understandable and helped to develop
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a mitigation strategy. Ultimately a time served plea with probation was agreed upon. Many lawyers, however upon seeing that this client can present well, comprehend, and speak coherently might have adopted a “just the facts ma’am” approach and might never have taken the time to discover what opportunities exist in the case for mitigation. There is no substitute for preparation and learning all you can--and not just about a case-- but also about the client. As you can see you may gain some peace of mind knowing that careful consideration has gone into your cases. You don’t want to be processed. You want to be defended.
Using This Work for Post-Conviction Relief
Before we close, let me mention the use of this booklet for Post-Conviction Relief purposes.
The Two Sides of the Same Coin
If you’re early in the criminal process, then you want effective representation. If you are or have experienced problems in obtaining effective representation then you are later in the process. If you have already suffered from ineffective representation observe that effectiveness and ineffectiveness are opposite sides of the same coin.
This book was written from the perspective of a person who has more recently been arrested and who is awaiting trial but observe that whether you’re newly arrested, newly convicted, to be sentenced, already sentenced, are on a first direct appeal, or even after the keys to success remains the same. The only difference is in the timing and employment of the differing legal procedures that are available to you to bring these issues to the attention of the court.
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By now you should understand that the “Effective/Ineffective Assistance of Counsel” issue is always present. You can take some comfort in knowing that there are methods and procedures available to address these concerns no matter what stage of the criminal process you are in. That said however there are strict time limits to try to turn things around. Don’t wait too long to seek a second opinion.
The Sixth Amendment Right
The 6th Amendment grants the right of the accused to have the “assistance of counsel” for defense against a criminal charge. That phrase has been interpreted to mean “effective assistance of counsel” meaning that if a lawyer is not effective he or she is not acting as a counsel. The most powerful and common remedy for addressing claims of ineffective assistance of counsel is the Motion for Post-Conviction Relief. I have written another booklet on this topic called “Straight Talk about Motions for Post-Conviction Relief”. Download a free copy at our website to learn more.
Additional Publications
I have authored a number of other writings that are available to you including:
The Method: How to Light a Fire Under Your Defense Attorney;
We Need More Bad Lawyers
Helpful Cases: Ineffective Assistance of Counsel at Trial;
Helpful Cases: Ineffective Assistance of Counsel Advising Client;
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Helpful Cases: Ineffective Assistance of Counsel at Sentencing;
Helpful Cases: Ineffective Assistance of Counsel Miscellaneous;
Straight Talk About Motions for Post-Conviction Relief;
Winning Templates: Guaranteed Legally Sufficient Claims;
Closing Thoughts
Make sure your situations are well handled. Consider getting assessments and second opinions. If you don’t think you are getting what you think you need then try to get fresh help right away. If necessary, seek a change of counsel. It’s easier to fix problems earlier in the process rather later.
Reach out to us if you need help. I wish you every success.
David M. Lamos
Attorney at Law
October 2019
©David M. Lamos 2019. All Rights Reserved.
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How Should My Lawyer Defend Me?
David M. Lamos
Attorney at Law
805 Delaware Ave
Fort Pierce, Florida 34950
772-464-4054
www.DavidMLamos.com
Learn How Great Lawyers Defend Cases;
Learn the Four Phases of Defense Planning;
Learn How to Identify All Possible Defenses;
Learn How to Get a Better Sentence;
Learn How to Get a Complementary Strategy
Session;
