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I always approach every case, whether ranging from a DUI all the way up to a murder case, with the same approach, and that is: what can I do to try to get my client’s case dismissed? I have a very good rapport and reputation with prosecutors because of what I bring to the table, having been a prosecutor and because I provide honest and truthful information about the circumstance. I do not overstate the case; when there are circumstances where my clients have done wrong, there are ways to deal with that and I don’t try to hide that, but I also will bring forth everything I possibly can to help my clients. So with that in mind and the idea of what can I try to do to get the case dismissed, I spend a lot of time, right from the beginning, investigating and fully preparing my client’s defense before we even start the negotiation process.
The reason for that is if I have a case where I complete my investigation both legally and personally specific to the facts, I get a complete picture of what the circumstance was. I can oftentimes save my client from having an active case on their criminal record. If the case does get filed, I use everything that I have done to now try to mitigate and negotiate with prosecutors, and I will have an idea at that point how I can use the strength of our defense to determine whether or not we should plead. If I know the prosecutor (which is usually the case), I know how much I want to share with that person, and whether I trust that they will do the right thing, rather than simply sharing information that is going to be hurtful to my client later on, in which case we will proceed to trial.
The same is true with judges: my experience will guide me with a certain judge, and whether or not I want to provide information to either the prosecutor and/or the judge or simply save it for trial. It all depends on so many different factors: who the prosecutors are, who the judge is, what is the reputation and nature of that particular office. These factors determine how I prepare my clients’ possible defenses for the best route to ultimately get a dismissal. If that means pre-filing, it means pre-filing. If it means at some point before trial, it means before trial and negotiating. If it doesn’t mean either of those two things, it means utilizing the strengths of what we could do at trial to get the best result for my clients. My starting point is a dismissal and/or rejection, and we work up from there.
In domestic violence cases, you definitely have an issue of self-defense. There may also be an issue as to who the initial aggressor was. There may also be an issue as to whether or not the veracity or the truth of the allegation exists. By gathering this information ahead of time before any additional follow-up, meaning after the initial event, I can prepare that information and present it to the prosecutor. Sometimes we will; sometimes we won’t. Every case is different. I had a child endangerment case recently where a previous attorney, who was hired by my client, told my client that it was better to simply wait and see what would happen until the court date. The client came to me after a week, concerned with this other attorney’s “wait and see” type of approach. My position was, “Let’s be proactive and not reactive to the circumstance.”
I knew who the filing deputies in the prosecutor’s office were and had a very good handle of what had taken place. I was able to get my hands on the police report, and I became much more proactive. That case ended up being rejected because of my proactive approach.
An attorney also needs to be careful here because it could pigeonhole the client into a defense; so if the case is filed and the attorney presented only one line of defense, you as the defense attorney, have to continue on with that line of defense to maintain your credibility. So knowing how to navigate those waters is extremely important.
The attorney needs to be careful about that, but can certainly present some of theories to help the client; the attorney can also shield your client from making any statements by presenting those statements through you, as the attorney, rather than the actual defendant. If the defendant were to make a statement to law enforcement or to the district attorney’s office, that can and will certainly be used in court, and I guarantee there would be portions of that statement that could be twisted and turned to help the prosecutor’s case. But if the defense attorney is providing that information, it can be properly framed so that it doesn’t hurt the defendant.
A credible presentation from defense counsel is not typically evidence, but it would be something that is now being put in front of the prosecutor so they’re now aware of certain facts of the case, which may cause them to change their strategy and their offer to settle. It could completely change the way in which they see the strength of their case; it could cause them to reject the filing and/or dismiss the case. So that’s one way to present a domestic violence case, and certainly the same would be true for sex crimes where evidence is gathered through statements, whether formal or informal, by the defense investigator and/or the defense attorney and presented to law enforcement and/or a prosecutor so they have an idea of whether or not the case may be consensual.
They may have statements from actual witnesses that show it was consensual, or there may be factual disputes presented that can assist the person who’s been arrested before the case has actually been filed. Of course, when it’s in court and being done with the oversight of an experienced defense attorney, who knows how it’s going to play out due to some valid evidentiary reasons, the prosecution may do what you’re asking them to do.
There are many circumstances where self-defense, consent, or in drug cases unlawful police activity has to be presented in the right form and through the right channels and with credibility in order to gain any result for your clients.
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