Wednesday, December 07, 2005

The innocent client

Another reality for criminal defense lawyers. Many of our clients are actually guilty. Once in a while we get a client who's actually innocent.

To be clear, some of our clients who tell us they're innocent are not really innocent. This may be a shock, but not all clients tell their lawyers the truth. The smarter clients don't tell us one way or another, and the smarter lawyers don't ask that question.

I've had a few clients who were actually innocent. Not long after I started my practice I got a client who was accused of stealing from the store where he worked. It was clear from early on that there was insufficient proof of guilt. The store did not have the proper accounting controls to show who was stealing money, or even show that money was missing. For example, the cashiers did not sign into the registers, and there was no inventory control over returned merchandise. A cashier could fake a returned item transaction, pocket the money, and there was no way to tell.

I explained these problems to the prosecutors. They were completely uninterested. He was the defendant, therefore he was guilty. Their theory was that there were a number of "suspicious" transactions that occurred only when my client was working. Now, they couldn't prove that a "suspicious" transaction was actually a phony transaction (because of the lack of controls) and they couldn't prove who did it anyway because of the lack of controls. On top of that, I hired a friend to go through the register tapes and he identified a number of transactions that seemed suspicious (like a coupon-only transaction, and a return after the store was closed) on days when my client didn't work.

That case went all the way to trial. The jury was outside waiting to come in and be picked. We conferenced with the trial judge (Dan Lamont, a great guy and a solid judge). Judge Lamont quickly recognized how weak the prosecutor's case was and let her know. We were still going forward and then I leaned over to the prosecutor at one point and said that I couldn't ethically prosecute this case if I were on her side. She ran downstairs to the DA and came back with an ACOD (effectively a dismissal). In retrospect, I give her credit because she saw the light. I think most prosecutors would have gone through with the trial (I was salivating at the prospect).

I've got two cases pending with clients who are actually innocent. One is also accused of stealing from his employer. This case is even worse than the one described above. And the other case is a DWAI, where the breathalyzer showed 0.07 BAC. Under NY law, at 0.08 or above, it's DWI. Period. But for 0.05 to 0.07, the BAC is not illegal on its own, but is an indicator of impairment. In this case there is a lot of evidence to show that my client was not impaired, and no evidence to show he was impaired. In both of these cases, the prosecutors just refuse to see it. They can't see through the haze.

I did just get a case dismissed with an innocent client. Charged with AUO (Aggravated Unlicensed Operation), it turned out that his insurance company made a mistake and incorrectly notified DMV that my client had no insurance. By the time we got to court, client had a letter from the insurer demonstrating the mistake.

I must therefore give credit to the prosecutor, a young black woman in Albany City Court, named Lavonda (I think). She recognized the problem and did not oppose the motion. The judge gave me a funny look. It's just so rare to see cases where the client is so clearly innocent.

I was so happy with the experience, and it resolved so easily, that i cut my fee in half on the spot. The client had paid me half and owed me the other half. I told him to keep it.

1 comment:

Anonymous said...

Your last two blogs were excellent. I was a hard nosed conservative, ready to execute everyone charged with a crime, until I had a petition of neglect brought against me by the county. I won't go into it, but I got an ACOD, although now I believe my lawyer should have fought to have it dropped. Anyway, I was innocent. My previous involvement with the law, involved two traffic tickets (I am almost 50 years old), so to discover that DSS attornies and prosecutors are not always ethical was a shock to me. Anyway, it's over, although not really. My views about defense lawyers have changed. Even though my lawyer was not a very good one, I have a new respect for defense lawyers. I voted twice for President Bush, but I have great reservations about the Patriot Act and other anti-terrorist measures, especially when defendants are held without being charged and aren't provided with an attorney. As I said to my son yesterday, we gave Herman Goering and other Nazi war criminals good defense lawyers. We can do the same for terrorists. Keep up your blogging. I blog also. It isn't always easy to keep blogging when you aren't sure if anyone is reading.