The value of an attorney-Giving a voice to one who might not be heard

Although attorneys sometimes get a bad rap and are labeled spin-doctors and tens of thousands of lawyer jokes exist, lawyers bring tremendous value to society and really can be the conduit to resolve conflict.  I am honored to be an attorney and to have the opportunity to bring a voice to those in need.

I have not researched the psychology of the following, but I do know from experience, it is one thing to say something about yourself and quite another for someone else to say the same thing about you, with the latter holding more effect and influence than the former, regardless of who is saying it.  This may be in part what inspired the classic adage, one who represents him or herself has a fool for a client.  The other aspect of this saying is derived in part because legal matters by nature are adversarial and it is quite difficult to look objectively at one’s own emotionally charged imbroglio.  Part of my introduction to new clients includes language that my job is not to be a yes person or that their conduct was appropriate if it was not.  I serve no value if I do not give an objective analysis of the particular case and likely outcomes.

Attorneys also share the client’s problem, a problem that is sometimes out-of-control and beyond the client’s control.  I have had many many clients whose careers require them to be in control and fixing things and they find it difficult when they are no longer in control in a legal matter and their continued effort to control the situation can be detrimental.

I have been near down-and-out  in my  adult life and pulled myself back up and in the course of events learned a number of valuable lessons I pass on to clients. I embrace Friedrich Nietzsch’s “what doesn’t kill you makes you stronger,” and a better lawyer.

Crime Law: Misconceptions about Basic Criminal Constitutional...

Crime Law: Misconceptions about Basic Criminal Constitutional...: "NOTICE: The following is provided for general informational purposes only. The law on this topic changes periodically and may be outdated or..."

Misconceptions about Basic Criminal Constitutional Rights

NOTICE: The following is provided for general informational purposes only. The law on this topic changes periodically and may be outdated or may not apply to your case and specific facts.  The information provided on this site should not be relied upon without consultation with a licensed attorney in your state. 

Authored by Mark A. Johnson, Esq.


More information about Mark Johnson.


More information on this topic.
Topics Covered Below:

•General search law
•Cooperation with a police investigation
•Searches
•Statements
•DUI detentions and arrests

Law enforcement officials are successful in making arrests and obtaining criminal filings in large part because individuals do not always know his or her rights and  misunderstand the law and therefore cooperate with the police in the belief he or she will be exonerated, only to find a crime will be charged.  I call this, “guilty with and explanation,” syndrome.

The police are also successful in making arrests and seeking prosecution because individuals lack the courage to assert his or her rights and feel an objection won’t matter.  To the extent individuals believe they know their rights, they are often mistaken as to the application of the law.  I equate knowing a little about the law is like knowing a little about martial arts, use the knowledge in the wrong way and you can really get hurt.

An objection to unlawful or inappropriate conduct should always be made, although it may be ignored and evidence of the objection may be difficult to prove in court should the officer deny it occurred.  Absent one’s protest at the proper time, it cannot be claimed later.  The appellate courts have routinely found that allegedly subtle coercive conduct by the police, such has uniform, number of officers, placement of hands on their weapons, and so on, is insufficient to show oppression and coerced consent.

In the event a protest is raised and the officer proceeds with a search or arrest, one must cooperate with the officer at the risk of additional charges.  Challenging an officer’s conduct in a hostile manner usually makes matters worse.  In such a situation, keep your cool, make notes and take pictures of injuries or property damage and consult an attorney right away.

Should I Cooperate with the Police Investigation?

Overwhelming it is NOT advisable to cooperate with a police investigation without first consulting with an attorney.  In some cases, cooperation may be necessary but should be under controlled circumstances.

I cannot tell you the number of times clients misunderstood their rights, cooperated with the police, even presenting evidence on their behalf, only to find they were arrested and charged with a crime.  All is not lost in these cases and an experienced attorney can help.

Do I have to Consent to a Search?

The police have no obligation to tell an individual of the right to refuse a request for a consent search if no warrant exception exists.

The US Constitution protects individuals from unreasonable searches and seizures and a warrant giving permission to search is required in cases where a person has an expectation of privacy.  In theory, one always has an expectation of privacy.  However, the appellate courts have carved out many, many exceptions to when an individual has a diminished expectation of privacy such that a warrant is not required provided certain requirements are satisfied.  Based on my experience, the exceptions apply in more situations than they do not.  

One of the most significant exceptions is if the person consents to waiving his or her rights.  For example, the officer says, “Hey, do you mind if I search you?”  The person almost always agrees, and may add “I guess”, or “it doesn’t matter anyways.”  As noted earlier, a feeling of coerced consent amounts to consent, even if reluctant.

I do not explore all areas of the exceptions in this article.  However, if an officer asks if he or she can search you, your car or property, you are allowed to tell the officer “No!”  The search may still take place and your lack of cooperation may prolong the officer’s investigation, even if unwarranted.

Do I have to make a statement?

As a general rule, an individual only has the requirement to truthfully identify oneself if lawfully detained.  (Detentions are not covered.)

A statement to police is generally not advisable before consulting with an attorney.  As noted elsewhere, individuals often misunderstand the law and a statement becomes guilty with an explanation.

One’s right against self-incrimination and law enforcements’ obligation to tell a person of his rights is often misunderstood.  I have lost count of those who tell me the officer did not read them their rights.

Until a person is in custody, which for practical purposes means arrested, and, asked questions of an incriminating nature, police have no affirmative obligation to tell a person a statement cannot be compelled.

The Constitution does not require a person be informed of individual rights, but the Miranda warning, a development of case law, requires the warning under the two conditions described.

A recent US Supreme Court decision found that after what is known as the Miranda warning is given, the police have no affirmative obligation to say anything else and may start questioning the subject.  It is up to the individual to tell the police no more questions.

SEE ALSO MY BLOG ON THIS TOPIC.

DUI Arrest

What am I required to do if detained for possible DUI.

Unless an individual is under 21 or on probation for DUI, only after actual arrest, is an individual required to submit to a chemical test (blood, breath or urine analysis for alcohol content) in order to avoid long-term suspension of driving privileges.  

If stopped for possible DUI, an individual is required to provide truthful identification, driver’s license and proof of financial responsibility.

An individual is not required to answer questions related to whether he or she has been drinking, how many or where drinks were consumed.  An individual is not required to perform what is known as the Field Sobriety Test, tests designed to assess psychomotor skills.  Though, some conditions of DUI probation may require performance of the test.  My experience is many officers are not completely familiar with the right to refuse the tests.  The tests do not have to be performed because the results become a form of self-incrimination.

PAS-Preliminary Alcohol Screening

Officers often carry portable preliminary alcohol screening devices and ask drivers if they care to blow into the device and if they do well, they will be on their way.

The operative question to ask the officer is if you are under arrest.  If the answer is “no,” refuse the test unless under 21 or on DUI probation.  Again, to keep one’s license, after arrest a chemical sample must be given to avoid long-term driver’s license suspension.

Crime Law: Domestic Violence Cases Handled Differently than o...

Crime Law: Domestic Violence Cases Handled Differently than o...: "Domestic Violence NOTICE: The following is provided for general informational purposed o..."

Domestic Violence Cases Handled Differently than other Criminal Cases

Domestic Violence

 

NOTICE: The following is provided for general informational purposed only. The law on this topic changes periodically and may be outdated or may not apply to your case and specific facts.  The information provided on this site should not be relied upon without consultation with a licensed attorney in your state.

By Mark Johnson

Law Offices of Mark A. Johnson

Southern California Criminal Defense Attorney

Domestic violence is a serious criminal charge that is charged as a misdemeanor or felony and has serious consequences including in the loss of the privilege to own or possess firearms, arrest, payment of fines, and participation in an anger management course.

I have been successful in obtaining complete dismissal of charges in addition to the reduction of charges in many domestic violence charges.

Domestic violence cases and DUI cases are among the crimes that are not summarily dismissed even when a victim recants his or her allegation(s) of violence.

While domestic violence is classically a crime of violence by men against women, women, too, can be arrested for abuse against a person with whom there is or has been a relationship or child together. 

History of Domestic Violence

Until the early 1980s police often dismissed the significance of domestic violence cases and the remedy was often nothing more than encouraging the male suspect to go sleep it off and find another place for the night.  This approach led to continued violence in the family with serious and continuing physical and emotional consequences to the victim.

Mandatory Arrests

Since the early 1980s society, the legislature and police have adopted a zero tolerance of abuse.  In addition to strong laws that require police to make an arrest where there is visible injury and evidence of a primary aggressor and in cases of violations of restraining orders, extensive victim assistance and counseling is now available.

Whether the Prosecutor files the case as a felony or misdemeanor is based on the seriousness of the case. Severe injuries (including severe cuts and broken bones) will almost always be charged as a felony. No injury or slight injury cases will generally be filed as a misdemeanor. Both prior acts of reported domestic violence and the criminal history of the accused may also influence how the case is filed---usually as a felony.

There are designated Prosecutors and special Domestic Violence Units (DV Units) within the Prosecutor's office that stand ready to aggressively prosecute anyone charged with Domestic Violence.

When the Victim Recants or Drops the Charges

 

In California you can be arrested and prosecuted for Domestic Violence even if the victim does not want you arrested. In some cases, especially with Spousal Abuse, it is very difficult for the victim to drop charges against the abuser. The Prosecutor can proceed with the criminal case even if the alleged victim decides not to go to court. The Prosecutor is the only one who can drop charges because the victim is merely a witness in a government prosecution.

I recall a client who manipulated the absence of the victim from court in the mistaken belief, “no victim, no crime.”  This case was a court appointment and fortunately I was excused from the case but obtained a very favorable deal, particularly since he had a prior case of violence but he wanted nothing to do with it.  Another attorney handled his case at trial and the victim did not testify nor could she be located.  He was convicted and sentenced to seven years state prison.

Crime Law: Trial as a Form of Moral Vindication is Seldom Adv...

Crime Law: Trial as a Form of Moral Vindication is Seldom Adv...: "I am a firm believer that failure is a wonderful teacher and it makes us better at what we do and I am glad that I learned valuable lesson..."

Trial as a Form of Moral Vindication is Seldom Advisable

I am a firm believer that failure is a wonderful teacher and it makes us better at what we do and I am glad that I learned valuable lessons early in both my law enforcement and legal careers.

One of the best lessons I learned early in my legal career is that cases don’t always turn out like cases I read in case books in law school, cases that embraced logic, goodwill and insight.

The unfortunate reality is that people can be untruthful, liars cannot always be exposed, bad things happen to good people and innocent people are convicted with some regularity.  Although each trial begins with the principles that the accused is presumed innocent and the prosecution has the burden to prove its case, the dynamics of human nature come into play and the defense begins its case in the hole.

While I have tremendous success taking cases to trial, there is always risk, and as noted in a previous article, one must always weigh reasonable options.  Taking a case to trial should not be based on a hope of moral vindication because moral vindication can be costly and often elusive, even under the best circumstances.

Today, at the brink of trial and after rejecting several variations of the same offer by the prosecution, the prosecution gave an offer that could not be rejected.  My client was charged with a battery, with possible consequences of 6 months in jail, a restraining order, probation, loss of privilege to possess firearms, participation in an anger management course and fines.  The prosecution offered a charge of 415, known as creating a disturbance, with no other conditions and no opposition to expunging the plea after 12 months.  He accepted the plea at the risk a jury might be sympathetic and believe an emotional teenager over him.  It was a good outcome with no long-term consequences.

In case you are wondering, it is very difficult to recover attorney fees and to be fully compensated or made whole in cases where an individual is exonerated in court by a not guilty verdict.  As such, my usual advice to people is to get the matter behind them, let go of any anger and live well.  Future success really is the sweetest form of vindication.

Excellent Result For Client

This week was a good week for clients. 

In addition to defeating a restraining order, I was able to resolve a case where my client was originally charged with attempt robbery, a charge classified as a serious and violent felony, also known as a strike crime.  The consequences would have been tremendous in this case.  I was able to obtain a reduction of the charge to 415 (disturbing the peace charge) as an infraction.  This level of charge is de minimis and of no serious consequence to my client.

I was fortunate in this case it was assigned to a reasonable prosecutor and a judge who encouraged a flexible resolution.

Crime Law: Old Case Continues to Get New Attention

Crime Law: Old Case Continues to Get New Attention: " I am surprised that an old fact pattern, though new criminal case, gets continuing attention. See latest story: http://www.pvnews.com/arti..."

Old Case Continues to Get New Attention

 I am surprised that an old fact pattern, though new criminal case, gets continuing attention.

See latest story: http://www.pvnews.com/articles/2010/09/09/local_news/news2.txt

Crime Law: The Art of Negotiation-Taking the Risk Out of Liti...

Crime Law: The Art of Negotiation-Taking the Risk Out of Liti...: "Today I was successful in having a restraining order dismissed without future consequence to my client. This dismissal was obtained through..."

The Art of Negotiation-Taking the Risk Out of Litigation

Today I was successful in having a restraining order dismissed without future consequence to my client.  This dismissal was obtained through negotiation and showing what both sides had to gain if the matter went forward on a contested basis. Although I have defeated the issuance of many restraining orders on a contested basis, bargained for justice is almost always the best route.

Although I felt confident I had the evidence to refute allegations against my client and impeachment against the petitioner, there is a always risk that  a case can go the wrong way even with favorable facts and evidence.

Based on my experience, there is truth to don't tell me the law, tell me about the judge.  Moving a case forward based on your or the client's ego is never a wise course to take if there are alternatives.  This is particularly true in family law cases.

Today's case was particularly sad as it involved the emotion of two families torn apart by an affair.  This case was unique as it was driven by the daughter of one of the affair participants.  The proceedings were really a way for the child to get closure and for her voice to be heard.  In the end everyone said their piece, some in tears, and parted with promises to do no harm to the other.

Fifth Amendment Admonition Erodes

Having begun my career in law enforcement, I gasped at the history of US Supreme Court decisions in the 1960s that hampered police effectiveness; however, now as a defender of liberty and justice, I watch as landmark decisions favorable to citizens and my clients are challenged.

Last summer I was surprised that the US Supreme Court ruled that a warrantless search of a vehicle unconstitutional once the sole occupant was handcuffed and unable to access the vehicle with certain exceptions of course, but yet recently found police had no affirmative obligation to tell an interrogated suspect he had the right not to talk to officers after the classic Miranda Warning was given.

Regarding last summer's ruling, I disagreed with the logic in the decision and although glad of the restriction I rationalize such a search under many of the existing warrantless search exceptions.

The current latitude now afforded officers in interrogations to in essence take advantage of a person already fraught with anxiety confounds me.  Experience tells me that the general public already grossly misunderstand their individual rights under the Constitution and the erosion of an essential warning developed over time (though admittedly no basis or requirement under the Constitution) seems unjust to me.

See: http://www.law.cornell.edu/supct/html/07-542.ZO.html
See: http://www.thefreelibrary.com/MIRANDA+LAW+ERODED+IN+CALIFORNIA+CASE+FIFTH+AMENDMENT+RIGHTS+WEAKENED...-a0102865452

New Criminal Case Brings Suprise Media Attention

A new case to the office draws surprise attention despite a two year lapse since the events giving rise to the charges.
Link
http://www.dailybreeze.com/news/ci_15972439