By October 31, 2010Criminal Defense

By Allen C. Gasper
Senior Partner
The Gasper Law Group

I’ve Been Charged, Now What?

During my years of practice in the criminal court system, I have been amazed constantly at the number of clients who have taken the time to seek legal advice, attend an initial intake appointment and spend time discussing the specific aspects of the case, only to ignore totally the advice given by the professional they spent time trying to locate. I find this amazing because it appears the client has convinced themselves that if the word is not spoken, if the possibility of culpability is not discussed, if the “less favorable” facts are not revealed, reality will conform to the client’s desired outcome. Not only is this foolish, it is often the most dangerous of paths, fraught with obstacles which may never be overcome.

It is generally accepted that individuals who find themselves exposed to potential liability for mistakes, errors in judgment or criminal charges determine that the best road is to do everything possible to present themselves in the best light available. While this may allow the individual to “sleep better” at night, it does not remove the circumstances which created the desire to shield themselves in the first place. Additionally, playing the “if I don’t acknowledge it, it will go away” game will only serve to waste precious time in preparation of a case which might be negotiated successfully utilizing the truth. So, what do you do when you visit an attorney for the first time after having been charged with a crime?

1. Be Honest. Believe me, your case is not the first of its kind. In fact, the chance a seasoned criminal attorney has seen your type of case before is overwhelmingly on your side. Attorneys are very busy and no one wants to chase the rabbit down the rabbit hole, simply because someone has made the decision to live in Alice’s Wonderland.

2. Don’t Tell Every Lawyer Your Story. Attorneys love to give advice. It’s what we do. We’ve been trained to do it and we love to share the fact we believe we are right with everyone we know. Not necessarily fun at the cocktail party but it is what every client seems to desire in the quest to feel better about the situation in which they have found themselves. It is my experience that potential clients are seeking that “feel good” experience during the initial intake and they will “cherry pick” all of the good stuff, ignoring the bad. The danger in telling your story to every lawyer you visit is that you will subconsciously incorporate the good advice of the lawyers visited into the story until it will be virtually impossible to remember the facts of the actual event when the desired lawyer is chosen. A seasoned criminal defense lawyer will wait until he has reviewed the District Attorney’s file thoroughly prior to debriefing the client on his version of the facts. The more accurate the client’s version of the facts – in light of the evidence presented in the DA file – the better chance the defense attorney has in developing a strategy to “counter-punch” the prosecutor’s already jaded view of the incident. Remember, sometimes the DA and police detectives have had been developing their version of the incident for months prior to turning their sights in the client’s direction.

3. But, if I am honest, I will certainly be found guilty. Not necessarily. Remember, just because the incident actually occurred, doesn’t mean there is no avenue to lessen the responsibility that might be pushed in your direction. As an example, someone who commits a homicide may be completely justified depending on the facts presented. Self-defense? Possibly, but not readily recognized by the attorney if the justification for the client’s actions is hidden by the client’s misrepresentation of the facts during the initial stages of the case’s preparation. Further, the client compromises his own credibility when it appears the “story” has been changed in order to accommodate a potential defense.

4. Be careful to share only what your attorney asks you to share. Don’t elaborate but answer only what is asked. Attorneys have been trained to understand the potential circumstances which may arise in your case and they have been trained to ask the correct question at the right time to gain the information they need. Sometimes, clients offer information which may not be needed and later, find themselves and their cases compromised. The question of guilt or innocence is not always the driving force which establishes the proper strategy for criminal defense. It is not a question of whether an incident occurred or the degree of guilt or innocence of the client. The line is blurred often by motivation and circumstances more than even the specific intent of the individual. In truth, the very essence of law is the process of becoming its own opposite. What may be illegal today may be legal tomorrow. That is not to say that standards do not exist within the statutes which provide a measure of absolute, nor is it a shifting of morality through “class ethic.” The development of defensive strategy is based primarily in the concept of the series of circumstances which provided the opportunity for the event to occur. It is always wise to remember that attorneys, as officers of the court, are always under an ethical responsibility to present a truthful defense. Often, attorneys do not ask the question because they, themselves, do not want to know. Answer the questions asked specifically, no more – no less.

5. Beware the attorney who “pushes the sale!” The relationship between you and your attorney is one fostered on trust and respect. All things being equal, choose the attorney who best understands your position, who has a firm grasp of the law and who is the one most likely to earn your trust and respect. You will be together for a long time, sometimes in turbulent waters, and the relationship you develop will be the foundation of a potential successful conclusion to your case. Money and the attorney’s need for a new client should not be the controlling factor in your decision in choosing an attorney. Beware that your case is not minimized in order to make you feel comfortable and not over-dramatized to create fear which panics you to the wrong decision. Reality lies somewhere in the middle and the competent attorney will recognize and embrace the truth. That is the basis of the right relationship which will provide the greatest opportunity for success.