Nothing will poison an attorney-client relationship more effectively than unfulfilled expectations. Some of this may be the lawyer's fault. Unscrupulous criminal defense lawyers, when discussing fees with a client, say things that the client might reasonably interpret as being a promise that if the appropriate amount of money changes hands, the client has nothing to worry about. If you get that pitch from a criminal defense lawyer, walk out of the office. For one thing, it is unethical to promise the outcome of a criminal case; but, even more importantly, there is systemic injustice that a lawyer-- no matter how talented or monumental his reputation-- is powerless to address. Thus, if you are facing serious criminal charges, it is critical that you understand how a lawyer can help you; but it is even more important to understand how a criminal defense lawyer cannot help you.
At the outset, let's state the obvious: The outcome of your criminal case is largely dependent upon the nature of the offense, your past record, and the evidence that the State possesses. Where the defendant has committed a gruesome homicide, and then confessed to it on video, there is very little a lawyer can do except to make sure that the process is fair. Unfortunately, as set forth below, there is unfairness built into the process that no lawyer can change. Only the public can change it when they go to the poll to elect judges and legislators.
Judicial hostility to criminal defendants. Wisconsin elects its judges. At first blush, this may seem to be one of the important freedoms in a democracy. In practice, though, judicial elections result in the vulgar spectacle of television ads showing gavels banging and cell doors slamming. Judicial candidates rarely run on the promise that they will be a fair and impartial judge of the law. Instead, the ads contain words and phrases like "tough" and "no-nonsense." Many judges are elected from the ranks of the District Attorney's office. Talk radio makes unveiled election threats against those judges it perceives to be "lenient." Consequently, a criminal case that draws media attention will frequently witness the judge playing for the cameras (and for the voters). There is nothing your criminal defense lawyer can do about judicial hostility to criminal defendants except to appeal to the judge's sense of fairness.
Overbroad laws. There is no law on the books that is more unfair than the federal conspiracy to distribute controlled substances statute. One is guilty if she "agrees with another" to distribute controlled substances. Unlike the regular conspiracy law, the government need not even prove a overt act in furtherance of a drug conspiracy. A mere agreement is enough to convict. When such cases go to trial, the government will simply call a succession of "cooperating witnesses" who will testify that he or she sold the defendant a large quantity of controlled substances over some given period. There does not need to be any drugs seized, video, or intercepted communications. It is simply enough for a snitch to say so. These are difficult cases to defend. It may be alleged that a conspiracy lasted ten years. The defense simply cannot defend against a claim that the defendant "agreed with another" to distribute controlled substances over such a lengthy period. The sentencing structure in federal court also places a great premium on defendants who proceed to trial. Thus, if you are charged in federal court with conspiracy to distribute controlled substances-- no matter how innocent you may be-- you are in serious trouble.
Draconian minimum mandatory sentences. Another way in which the legislature has attempted to negate the effectiveness of criminal defense lawyers, and to guard against "lenient" judges, is to create statutes that provide for minimum mandatory sentences. Perhaps the best example of this is the statute that provides for a minimum mandatory sentence of twenty-five years of initial confinement upon conviction for first degree sexual assault of a child where there was intercourse. Again, at first blush, this may seem like a good law. However, in practice, it is profoundly unjust. Firstly, it puts all of the power in the hands of the prosecutor and nullifies the power of the judge, even if she were inclined to be fair. By charging a defendant with the minimum mandatory penalty, and then offering to strike the intercourse allegation, it virtually guarantees that the case will not proceed to trial. A criminal defendant must think long and hard before he rejects such a plea offer in favor of a trial. By striking the intercourse allegation, there is no longer any minimum mandatory sentence. However, under those circumstances, any waiver of one's constitutional right to a jury trial is hardly voluntary, neither is the guilty plea freely and voluntarily made. There is nothing a criminal defense lawyer can do about such a ridiculous statute.
Collateral consequences. Many criminal convictions carry collateral consequences that are wholly beyond the criminal defense lawyer's power to change. The most obvious collateral consequence of any felony conviction is that the defendant may never again legally possess a firearm. Thus, if you are a hunter, and you are convicted of felony possession of Percocet withouth prescription, you will never legally hunt again. Similarly, non-citizens face a whole host of collateral consequences. Any conviction for cocaine possession or domestic violence will virtually assure removal or denial of citizenship. There is nothing your lawyer can do about any of these consequences.
Effective criminal defense counsel is the best structural guarantee of fairness in the system. It makes it more likely that the result of a trial is fair, and it assures that a guilty plea is freely, voluntarily, and intelligently made. But there are things your lawer cannot change, and if you go into the case with an expectation that your lawyer will be able to "make the whole thing go away" you will, more often than not, be sorely disappointed.
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Schiro & Zarzynski
Personal Injury Attorneys
Milwaukee, WI 53203
414.224.0825
"The bully lawyer"
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