There Are Lawyers, and Then There Are Criminal Defense Lawyers
Let’s say a disgruntled former employee has been making accusations about you to the U.S. Attorney’s office. You regularly use a good law firm for your business matters. If an FBI agent wants to talk to you, should you let your civil lawyers respond, or should you arrange a consultation with that solo lawyer down the block who doesn’t draft contracts or private placement memoranda but is always in court, defending people accused of crimes? What distinguishes a criminal defense lawyer from other members of the legal profession?
A criminal investigation by a state or federal law enforcement agency will be an experience unlike any other you will ever face. The ultimate goal of such an investigation is not merely an injunction or some negotiated sum of money in settlement. This investigation’s goal is you. These investigators are serious about putting you in jail. They are people whose laudable goal is to uncover and punish criminal activity.
Often, however, people who are drawn to careers in law enforcement are “true believers” who become overzealous, even self-righteous, and capable of losing track of notions of fairness and objectivity in their drive to get convictions. Far too often, case agents make up their minds before reasonable alternatives have been investigated, and the “investigation” then becomes a search only for evidence that supports their foregone conclusion that you are guilty. Evidence inconsistent with your guilt is ignored or abandoned, or covered up.
You are dragged into the government’s special arena, and trapped in the hands of a zealous, self-righteous bureaucracy. You are swept along in a process governed by written and unwritten rules very different from the rules that govern your other legal and personal affairs. Some of these rules exist to protect you from unfair tactics and wrongful prosecution, but until you have a criminal defense lawyer on your side, these rules will be ignored and subverted by your accusers.
The first instinct of people who are being accused is to defend themselves by explaining the innocence of their conduct to the agent. This is also the approach often advocated by the civil lawyers used by the accused for other matters, and this is to be expected. After all, the proper response to a civil lawsuit is a pleading called the “Answer,” a document that responds to a plaintiff’s complaint with denials, explanations, facts and even counterclaims. Likewise, civil lawyers know that responding to an inquiry from a regulatory agency is often “mandatory” for regulated businesses, and may tend to treat an FBI inquiry as if the client were “required” to respond.
Unfortunately in the criminal arena, the prosecution is often on a crusade. By the time an FBI or other law enforcement agent is ready to interview you, the decision to prosecute has practically been made. This is probably not the time to put any of your cards on the table. For one thing, the prosecution will not be showing its cards. You will have very little idea what the accusations against you are until you are actually charged. Even then, the government will give you information only grudgingly, and will hide every bit of information about its case it can. Often the agents will deliberately lie to you, claiming some former employee or partner has admitted guilt and implicated you even though they haven’t, just to get you to “give up” and “confess.”
In this “Alice in Wonderland” situation, the best thing to do is to refuse to speak with the agents and demand to talk with a lawyer first. This is your most fundamental right. Then you should call that civil firm you normally use and ask for the name of a good, experienced criminal defense lawyer, or do some looking on your own. There are some typical characteristics of criminal defense lawyers that you should look for.
A criminal defense lawyer is focused on criminal cases only
When you are being accused of criminal conduct, what you need is a lawyer who is just as driven by the desire to defend people as the prosecutor is driven by the need to prosecute.
Civil lawyers, to me meaning lawyers who devote less than half of their practice to criminal defense, usually concern themselves with proving a case. They handle cases by presenting proof of some injury caused by the other side.
Criminal defense lawyers think in terms of attacking a case, knowing that they must focus on what the other side is trying to prove so that this “proof” can be picked apart, piece by piece. Criminal defense lawyers appreciate that the opponent must prove a charge against their client “beyond a reasonable doubt,” a standard of proof that must be exploited, a standard of proof much higher than civil lawyers apply in their cases.
And criminal defense lawyers attack cases with tools never used by civil lawyers. Motions to suppress interviews and statements; to suppress evidence seized from an office, home or computer; or to exclude business records are examples of such tools. The Fourth, Fifth, Sixth and Eighth Amendments to the United States Constitution are such tools. The complex and ever-changing case law relating to crimes, criminal procedure and criminal evidence is another such tool, a tool that is not used well by a lawyer who doesn’t practice in the criminal courts daily.
Unless your lawyer regularly deals with such criminal law issues, his or her imagination may not be primed to seize upon the subtle nuances of the facts that will permit the fashioning of a winning defense.
A criminal defense lawyer is a trial lawyer
The jury trial is what criminal defense lawyers live for. Such lawyers prefer to go to trial, and recommend that option to clients more often than do their civil counterparts.
Civil lawyers tend to give conservative advice. Where money or property is concerned, it is usually better to negotiate and settle a case rather than take the possibly “all or nothing” gamble, and added expense, of a trial.
A conservative approach in a criminal case will almost always mean pleading guilty and seeking the least amount of punishment. Now, many times a plea negotiation is how criminal cases are resolved in the best interests of the client. The true criminal defense lawyer, however, approaches even plea negotiations with aggression. The defense attorney must come out strong in persuading the prosecution that the weaknesses in its case justify a compromise on punishment. The prosecutor must also be made to understand that the defense attorney knows how to try a case, and in fact loves jury trials. If the prosecutor wants to avoid the time and expense of a jury trial, and the risk of the defendant’s acquittal, an attractive plea agreement with a substantial savings on jail time will have to be offered.
The true criminal defense lawyer knows to prepare the defense from the beginning as if jury trial were inevitable. This is another reason criminal defense lawyers very often practice law by themselves. Preparing every case as if it were going to trial requires a great deal of lawyer time, more time than a lawyer can possibly charge the client for, at three- or four-hundred dollars per hour. Because the criminal lawyer just has to work at an hourly rate effectively lower than that billed by civil lawyers, attorneys who are driven to defend people accused of crime are most often encouraged to open their own law practices. This is for the best. Criminal defense lawyers tend to be characters who don’t fit in all that well with other lawyers anyway.
A criminal defense lawyer has special expertise
The government’s arena is a very different place. The criminal courtroom is a very different place. Chances are good that the lawyers who drafted your estate plan or helped your business “go public,” or advised you concerning the Clean Water Act, won’t have enough experience with the process of the criminal investigation to protect you every step of the way. They won’t have the same skills in front of a prosecution-friendly judge during the delicate pre-trial hearings that will determine how much of the prosecution’s evidence will be allowed to go to the jury. They won’t have the proper frame of mind to aggressively tear into the prosecution’s proof if your criminal case should have to go to trial.
Last but not least, the civil lawyers you ordinarily turn to won’t have the overall experience and skill to look at the prosecution’s case and size it up, to decide whether you should go all the way through trial or seek a plea agreement. The criminal defense lawyer possesses such skill and knows that sometimes the question of whether a client is guilty is less important than the question of whether the prosecution can prove guilt.
When you have been targeted by the government you need a criminal defense lawyer who can protect you from the processes at work in the criminal case. The experienced criminal defense lawyer has the skill to learn the facts, applicable laws and regulations of your case quickly, and apply these things in the special arena of prosecutors, search warrants, proof beyond a reasonable doubt, and the Bill of Rights.