Christina Eksted

Another danger sign is the attorney who claims to be getting you “special privileges" that aren't special.

It finally happened. The police found that hemp plant you've been growing in a nearby canyon and they don't believe your story about making rope “for the war effort." Or maybe you finally punched out that fink you though deserved it for so long, only the D.A. doesn't see it that way. Or maybe you sold your car, left those old traffic tickets in the glove compartment and “just sort of forgot about them.”

So here you are in jail, right or wrong, with two zillion city or county prosecuting attorneys breathing down your neck. You wait for your day in court and pray for a very good defense attorney or a very big earthquake.

Your immediate decision, of course, is when and how to choose your lawyer.

Finding a good one

The best situation would be to know a lawyer you trust and to have that lawyer represent you from the time of lock-up. He or she should be someone you can call from the pay phone in the holding tank at county jail. He should be able to arrange for your release on bail or on your “own recognizance” (“O.R."). (Getting “O.R.” means getting out without bail; it usually takes both a steady job and some community contacts.)

If you don't already have a trusted lawyer and can't afford one. you can ask for court-appointed counsel at the time of your arraignment (when you hear the formal charges before a judge).

Generally, court-appointed lawyers have mixed competence, concern, integrity, and free time, and are picked at random. My sources mostly indicate that the best ones come from Defenders. Inc., a local group of poorly paid, defense-minded attorneys. However, when asking the judge for a court-appointed lawyer, you can't stipulate that he or she is from Defenders unless, for example. you have been previously represented by a particular Defenders attorney.

Without a speed reading course under your belt, a gambler's instinct, and a few months free time, it is extremely unwise to conduct your own defense. You can ask at the arraignment to represent yourself (in "pro per”, as they say in legal parlance), obtain your own arrest record to see what they've got on you, and then file for “a date to name an attorney.” Or if, by the time of arraignment, you think you know a lawyer you can trust, you can just ask then for “a date to name an attorney.” In either of these latter two cases, the judge will give you a date, probably about a week hence, to do so.

Spotting a bad one

If your lawyer begins to plan a scenario with a dramatic pleading for leniency from the judge or the jury, or a grandly orchestrated Perry Mason turn-about, you should first ask him to walk on water. Then you should look quickly for another counsel. Your defense argument should above all be believable to you and consistent with the evidence.

“Juries go for soft sell and sincerity, not pontifications and acting, "suggested one source. Your attorney should not come on like someone from Edge of Night. “You'll not only alienate the judge. but piss of the deputy D.A. prosecuting your case, who will feel more justified in getting a stronger conviction.”

Of prime importance is complete communication between you and your counsel. You should be completely conversant with your defense strategy as it is developed. It is you who should decide if you will agree to plead guilty to lesser charges than you were arrested on or if you will stand trial on the original charges.

And you will have to decide in choosing your attorney whether the defense strategy he is developing with you will relieve your predicament or exacerbate it. If you feel, after careful thought to your own interests', that your attorney is more excited about grandstanding than in defending you, look fast for a new one.

Another danger sign is the attorney who claims to be getting you “special privileges" that actually aren't special at all for a special fee. “A waiver of personal appearance is a good example," noted one source of mine. "Everyone has this right, except in felony cases when the defendant must appear at least once. The waiver form isn’t something special; no argument has to be made. You could do it yourself, but sometimes the attorney charges big fees. If he charges you something like $100 for it, you're getting burned.”

How far your lawyer should go to agree with the D.A. is a matter of debate. Some local D.A.'s think that agreement, even on a minor stipulation, is important because it determines “the D.A.s and the judges attitude of the defendant's sincerity," An example of a minor stipulation is given by the case of a lawyer who refused to stipulate that evidence submitted by the prosecution was marijuana. Since the prosecutors could easily prove its identity, the lawyer's refusal to stipulate that the substance was indeed grass injured the defendant's credibility and made it easier for the d.a. to prosecute on the original charges.

Defense attorneys, on the other hand, choose solidarity with the defendant's claims of innocence over the “cooperative element." A common defense attitude I found, for example: “I sometimes hassle the D.A..s because they think they're gods, and once they judge a defendant. that's it. But they rarely ever see the defendant to talk with him. All they see is the arrest report and investigation sheet and they think they know the defendant and what he deserves.”

To that, another D.A. retorts, “Many defendants never tell their attorney things relevant to their case. They'll find out something from us, at court or during plea bargaining, and act surprised."

The Prelims

The preliminary hearing is probably the next act in the drama being played out in your local courtroom theater, and you don't want it to end up a farce or a tragedy. Especially in the case of a felony, your attorney should never overplay your hand in the prelim.

“The defendant can't really win at a preliminary hearing unless the proof of innocence is very strong or there are very strong grounds for throwing out the evidence. The prosecution only has to show probable cause for suspicion in the arrest to get past the prelim.

“And if the judge drops the case, we (the D.A.) can always file it again with no prejudice against the case as many times as we want. Then you’ll have to re-arrested, re-booked and have your bail set again.”

Putting up a strong fight at the prelim is very bad, unless your attorney can easily show you're innocent.

“It's especially bad if your attorney puts you on the stand. We will be able to cross examine you and tear you apart. There's a six-week gap between the prelim and the trial. With investigators and other resources we'll use that time to explore the contradictions of your prelim testimony and add it to our case against you.

“If you’re innocent, any good defense attorney will usually be able to show that before the prelim and the charges will be dropped.

“Even if you aren't on the stand at the prelim, a strong push to have the case dropped will probably be bad. The stronger your push, the more of your case you give away to the d.a. who won't drop the charges unless he's convinced of your innocence."

Some defense attorneys disagree with that argument, especially when they have strong evidence to discredit the testimony of arresting officers or key witnesses, or strong arguments for throwing out the evidence altogether. “When a strong prelim argument can be made without discrediting the defendant or his counsel," noted one prominent San Diego defense attorney, “it's usually worth making. You just never really know when a judge is going to agree and throw out the case.”

The prelim is a proper time to ask lots of questions of the prosecution. “Any question that elicits information in the preliminary, as long as you don't give away your strategy.” The idea is to gel as much detail, all of it recorded by the court, about the plaintiffs Really you want to test the knowledge, recall, detail and certainty of the prosecution’s witnesses, and weave it into your defense.” said the D.A. source.

Some bargains

“About 50 percent of the time, the best offer you'll get in the way of a plea from the D.A. will come before the prelim,” says a D.A. source.

Two of these offers, or bargains. are Diversion and the 1538 Motion.

Diversion means the charges against you are set aside at the arraignment until, when you've met certain conditions set by the court, they are dropped altogether. Diversion is a relatively new legal procedure similar to plea bargaining where you end up not getting zapped for all the charges you were arrested on. but you're not found innocent, either. Usually diversion is offered by the D.A. in pot busts or other "lesser offense" cases that are bloating the court system these days.

If you accept diversion, you are seen as willingly complying with conditions set by the court in order not to stand trial.

Notes a D.A. source. “Many people who get diversion don't take the legal act seriously and don't fulfill the conditions they've agreed to, such as showing up at the probation department for the mandatory interview." The probation officer thereafter has a very strong influence on the case, by judging your attitude, your moral convictions and your feelings about committing the crime you apparently don't want to be tried for.

“You have to think about not offending the probation officer, who may be a real tight-ass and very judgmental. But you shouldn't refuse to see the probation officer if you've agreed to. or you're in real trouble."

One particularly flawed scenario, he notes, finds the defendant with an acute attack of moral indignation, proselytizing and defending the merits and beauties of a palate for a particular drug. “You have to come across as honest and sincere." he notes. And you have to be realistic.

At the end of the diversion, if all the conditions are met. the charges are dropped, “two hours at the probation department interview may save you 20 hours of trial, legal costs, a fine, a sentence and a record."

A 1538 motion is a motion your attorney can file to try to have the charges completely dropped. If you're charged with a felony, the 1538 hearing comes during your prelim. In the case of a misdemeanor. where there is no prelim, your attorney would file for a special 1538 hearing.

In either case, the 1538 motion is one to have the charges dropped and the case completely dismissed on the basis that the evidence against you. whatever its implications. was illegally obtained and therefore your Fourth Amendment rights prohibit prosecution using that evidence.

Prosecution sources suggest that lawyers sometimes file 1538 motions for the purposes of (1) making more money, charging the client for the extra hearing, and (2) “to cover their asses."

“Any 1538 motion is worth filing if there's any chance at all that the judge will drop the case," one San Diego defense attorney said. The motion puts the burden on the prosecution to show “probable cause" as to why the search, seizure and arrest was made. In some cases, this simply means producing a search warrant used in the arrest, which puts the burden back on the defendant to challenge the legality of the warrant or its use.

There are drawbacks of filing a 1538 motion similar to trying to get your case dismissed at the prelim. The prosecution has only to show that the preponderance of the evidence shows “probable cause” for making the arrest. “In at least of the cases, the police report shows the search was legal,” claims the D.A. source. “Don't ask for a 1538 hearing unless you feel there is some sort of chance that the case may be thrown out. The hearing may open holes in your case by-getting new facts or by showing your defense strategy."

If you lose and the case isn't thrown out, warn the source, the judge can refuse to grant you a diversion, reasoning that you had your pre-trail chance to prove your innocence and chose to spend it on the 1538 hearing.

"You have to ask yourself if having the case thrown out because of illegal search and seizure looks better on your record than a diversion would, where the case is dismissed."

Then, of course, there is the risk of whether your decision to take diversion rather than stand trial shows up in a computer bank in Sacramento or Maryland and ends up on your credit record, your FBI file, or in the hands of an employer or corporation.

You and your attorney must decide.

Plea bargaining obviously becomes more relevant as your chance for complete dismissal dissolve, and according to the source, it is the area where unscrupulous attorneys run their biggest games on their clients. Sometimes that means the attorney charges an inordinately high price for simply bargaining down your plea just as the defendant or any other lawyer could have done. Sometimes it means the attorney will refuse to plea bargain at all with the d.a., putting on a show' of legal bravado which costs the client more and more, but which only hurts the defendant's chances of getting a lighter sentence.

One common boondoggle, according to the D.A. sources, is for the defense lawyer, failing to make any real progress in the case but needing to come up with something to satisfy his or her client's investment, will negotiate for a slightly different charge against the client. Though the new charge may sound more innocuous, it will be just as serious. But the attorney will crow about the “triumph.” The defendant soon emerges back into the real world to find that employers don't see much difference between “burglary” and “criminal trespass," since both are felonies.

Pleading to a lesser charge isn't as good as diversion, but it may be the defendant's safest legal ground.

Your strength in bargaining with the d.a. depends entirely on the difficulty the d.a. will have in convicting you on the original charges.

Pleading to a lesser charge is like dropping out with a bad hand in poker, when you've already lost some chips on the deal and don't want to lose more.

If you attorney can show “reasonable doubt" that you are guilty of all the charges, there is probably no reason to plea bargain with the d.a. Like the motion to dismiss the case at the prelim and the 1538 motion, the plea bargaining arena is not the place for your attorney to play the hard-nose and pontificate.

The Trial

The two places where you do want your attorney to be hard-charging and aggressive are (1) during the pre-trial hearings when the judge meets in chambers with the defense and-or prosecuting attorneys. and (2) during the main body of the trial when defense counsel rebuts the prosecution's charge(s).

The pre-trial hearings allow the defense opportunity to offer motions or briefs regarding specific elements in the prosecution's case. Motions to dismiss elements of the case as hearsay or on rules of evidence can be made, and this according to the d.a. source “is where your attorney earns his money. The outcome of the trial can be enormously affected by strong motions to the judge which the defense attorney can later return to during trial, while objecting to a point or asking the judge not to allow certain types of testimony or evidence. That's where you want your attorney to go wild."

The first time the D.A. will hear most of these arguments will be during the trial, as the defense rebuts the charges presented by the prosecution. That's when the D.A. has the least time to amend his argument, just before he makes his rebuttal to your rebuttal, after which the jury retires for deliberation.

Notes the D.A. source: “The real advantage o( the defendant is complete discovery of the D.A.'s case (your right to know the charges and evidence against you before you are tried). The strongest part of your case comes at the rebuttal.

“With little time to meet your new rebuttals or work up more evidence, the D.A. will have to make you out as a liar, something the jury will hate unless they really think you're lying.

“You may just eviscerate the people's case."

Jonathan Gage is a staff member at the San Diego Edition. This article is reprinted from the July 12 issue of the Edition.