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How Can You Stand Being A Criminal Defense Attorney?

Criminal Defense Attorneys often get asked the question: "How can you do this job?"

"How can you defend guilty people?"

"How can you get people off on 'technicalities'?"

"How can you stand to work with 'those' kinds of people?"

Before moving on let me say briefly, I am proud of my profession. I defend the rights of the People of the United States and the State of California, and I stand as the champion for my clients opposing a system of law enforcement that is systematically bloated, corrupt, unjust, cruel, and generally UNAMERICAN.

•I. NOT EVERYONE IS GUILTY

Before we get any further, I should note the obvious. Not everyone who is accused of a crime is guilty.

There is a reason that the right to an attorney is so basic to the American Justice System that you will be given a lawyer for free if you cannot afford one. That reason is that having a lawyer prevents innocent people from being convicted of crimes they didn't commit. The fact that innocent people are charged with crimes is not open for debate. Innocent people are not only charged with crimes, they are often convicted of those crimes. You want proof? We've got it.

http://californiainnocenceproject.org/

This website will take you to the California Innocence Project. This group of volunteer Criminal Defense Attorneys have gained the freedom of the innocent men and women listed on their website after definitively proving to the California Courts of Appeal that they were wrongfully convicted.

http://www.innocenceproject.org/cases-false-imprisonment

Here are THREE HUNDRED PLUS more cases nationwide, of people who spent years in prison (some on death row) for crimes that they were eventually proven definitely not to have committed.

Do you feel a little nervous yet? Let's keep going.

http://www.eyewitnessid.com/

This is the website of Dr. Robert Shomer. Dr. Shomer has worked on numerous cases for my firm as an expert in the area of eyewitness identification. More precisely he is an expert in exactly how TERRIBLY UNRELIABLE eyewitness identification in criminal cases is. His website links to numerous articles explaining this, as well as numerous cases where innocent people were arrested based on bad eyewitness identifications. I'll be writing a separate blog soon all about my own experiences with bad eyewitness identifications, including the cases that Dr. Shomer has worked on for me.

Given that we know for a fact that innocent people get accused of crimes they did not commit, can we agree, together, that everyone deserves the right to defend themselves in court, and to have a lawyer, who is trained to do just that, at their side? Because this is an all or nothing proposition. Either everyone has the right to have their day in court, or no one does. There simply is no middle ground. When a Criminal Defense Lawyer stands up for the right of Charles Manson, or Dzhokhar Tsarnaev (Boston Marathon Bombing) or any other probably guilty person's right to defend themselves in court with a lawyer at their side, they are defending that right for all of the innocent people out there who may really need it one day. Let us be clear. The police don't and can't be allowed to decide who is guilty[1]. Neither can the media, or the public watercooler consensus decide who is guilty. The way that we, as American's, decide whether or not a person has committed a crime, and thus is deserving of punishment, is we have a trial. And we as Americans know that that trial will be fair, and honest, and complete, why now? Say it with me... "CRIMINAL DEFENSE LAWYERS."

I love my job. I take it very seriously. And I could stop here, having made my case. How can you do your job? How can you defend... blah blah blah. Innocent People. Game over.

But that isn't the whole answer. The second, largely unsung role of the Criminal Defense Lawyer in society is to protect that society from the police. The criminal defense lawyer is the first, last, and many times the only line of defense society has against the worst abuses of law enforcement, and the worst abuses of law enforcement roughly equate to the worst abuses perpetrated by humankind. No I am not exaggerating. Police officers murder people. They commit rape. They manufacture fake bad evidence, and steal and destroy real good evidence. Police in some areas have made it a policy to illegally harass and detain people for the "crime" of living in the wrong neighborhoods, or being the wrong skin colors.

This is not an anti-police blog. Police officers are absolutely necessary to modern society. There are genuinely bad people out there. There are people out there who themselves will rape, murder, rob and set fire to the world at any opportunity unless they are stopped by force. The "Police Force" is that "force" we use to "force" the bad guys to either play by the rules or get locked up in cages where they can't do the rest of us any harm.

In order to do this absolutely vital job we give to police officers amazing power. We allow them, first and foremost, to carry guns and other weapons anywhere they go. We allow them to use force against people to make arrests, to use force to detain people for questioning, and occasionally even to use force against protesters who happen to be making a nuisance of themselves. Sometimes we let the police use force to go into people's homes and look through their personal belongings. Sometimes the police will take people's children away from them by force and put them with another family. Sometimes the police will seize people's property and keep it as evidence of a crime. Sometimes they will listen in on your private phone calls, or track your car, or read your emails.

All of this power is (sometimes) necessary for the police to do their job, which is to protect the good guys (us) from the bad guys (criminals). Most police officers, like most of any group of people, are decent human beings, trying to do their jobs to the best of their abilities. What makes it a "big deal" when police officers "go bad" is the incredible power they have to do damage both to individual lives and to social liberty as a whole.

"That would never happen!" I hear someone exclaim. "Police officers would never break the law!"

Really. Some people think this. And bless their little hearts, the world is sometimes better off for the existence of the starry eyed optimists out there. ... This is not one of those times. Men and women in law enforcement break the law. It happens. It happens so often that there are special police agencies (usually referred to as "internal investigation units") whose WHOLE JOB is to investigate other police officers who break the law. ... Let that sink in for a moment.

"Then what's the problem?" I hear another person exclaim. "One group of police watches another group of police and everyone behaves right?"

Again. With all love and respect for the starry eyed optimists out there. No that is not how it works. Unfortunately the police don't do a very job of policing the police. If you would like to see vivid proof of this, I suggest looking at any one of a number of online sources.

https://www.facebook.com/policethepoliceACP

https://www.facebook.com/CopBlock

https://www.facebook.com/FilmingCops

Each of these organizations posts pretty much daily accounts of police abuse of power, excessive force, and general misconduct. Are they always fair and balanced in their coverage? No they are not. But a quick look at their information lets you know the titanic scope of genuine police misconduct in America today.

The police don't do a very good job of policing themselves. Why is this? Is it because they are evil vindictive people. Not entirely. A few of them are, but most are not. Mostly the reason that police officers break the law is because they feel that something about the particular case they are working on justifies them breaking the law.[2] The police know that their job is to get the bad guys, and most of them take that job very seriously, and very personally. They WANT to get the bad guys. They HATE the bad guys, and they should. I spent years working as a prosecutor and I get it. Police officers go to crime scenes every day and see horrible things. They see women and children and elderly people who have been battered and abused. They see mangled bodies who have been shot and stabbed and occasionally set on fire. On a good day all they need to deal with is a steady stream of good people who have had their lives turned upside down because some cretin stole their car, or broke into their house or held them up with a gun and took their purse or wallet. The police officers that I have known and called friends, and still know today and call friends, feel a completely justified righteous indignation that such things should go on in the THEIR town which THEY have sworn an oath to protect. Faced with that, the niceties of Due Process of Law, such as Probable Cause, Warrants, and the avoidance of "Excessive Force" start to seem small and insignificant. I hear police officers all the time saying how much they wish they could just do their job without having to deal with all the legal technicalities. "It's like they want me to do my job with both hands tied behind me back." One officer said to me. I'm sure it's infuriating.

"Why don't we just let the police dogs off the chain?" I hear people ask. "If you don't break the law you don't have anything to worry about!"

Yes you do. When the police ignore the law and take shortcuts, and don't do their job the way they should there are a number of bad things that happen:

•1. THEY ARREST THE WRONG PEOPLE.

•a. When police officers fail to gather the right evidence, or worse, when the fabricate evidence, because they are convinced that they have the "right guy" often times they are WRONG. The innocent people who end up in jail take very little solace in the knowledge that the cop "meant well" when this happens.

• i. I remember seeing this happen one time where it could be absolutely proven. When I was in law school I spent two of my three years as an Intern at the Los Angeles District Attorney's Office. I then spent an additional six months as a paid research attorney for that office after I graduated from Law School, before taking a job as a trial attorney for the Tulare County District Attorney's Office. During the second half of my second year with the LADA I was working on a gang case. The Prosecutor had asked me to look through the police reports and videos and summarize what was there for him before he started working on the case.[3] This particular case was a gang shooting. A teenage boy had been shot in the back and killed while walking from the store to his mom's house. The police, for reasons too complicated to get into here, were convinced they knew who had committed the crime. Low and behold, a citizen witness came forward, and told the police that he saw the shooting, but he didn't really get a very good look at the shooter. The police asked this good citizen to please look at a six pack photo lineup[4] anyway to see if he can identify the shooter from the photos. Low and behold, the citizen comes through for them and identifies the "right" photo, (the guy they already had in custody for the crime.) ... Fast forward a few months. One of the actual shooters associates gets arrested for a different crime, and in order to strike a deal with the prosecution to save his own skin he gives up the real shooter. The police raid real shooter's house and find the gun that matches the ballistics to the casings found at the murder scene, and the bullets pulled out of the victim. Real shooter also happened to be a rival gang member, who owned a car that matched citizen witness's description. ... This person looks NOTHING like the suspect who had been identified by the citizen witness out of the six pack photo lineup weeks earlier. ... Ooops. What happened here was obvious, and while the Prosecutor on the case would never admit as much in public, he was shouting at the top of his lungs about it inside the private walls of the Los Angeles District Attorney's Office. The cops obviously tipped off the citizen informant about the answer they wanted him to give when they gave him the six-pack photo lineup. The citizen informant, wanting to help the police (who he saw as the good guys) played along and told them what they wanted to hear. ... Imagine what would have happened in this case if the real shooter's "associate" hadn't turned him in? I virtually guarantee there would be a kid serving a life sentence in prison, right now, for a gang crime he didn't commit. THAT is the kind of thing that happens when police go bad.

•2. THEY BECOME WORSE THAN THE BAD GUYS.

•a. I know that's a bold statement, but when police officers get away with breaking the law, everyone, the innocent as well of the guilty, suffers a reduction in their liberty.

• i. Do you want to live in a world where police officers can kick down your door without a warrant, or based on a warrant that is full of lies, and then rifle through your underwear drawer, or your wife's, or your children's'?

• ii. Do you want to live in a world where the police can pull your car over for no reason, make you sit on the dirty curb and rifle through your belongings there?

• iii. Do you want to live in a world where you can be stopped on the street for no reason, and a police officer can feel you up to see if you've got something hidden in your clothes?

• iv. Do you want to live in a world where the police, for no reason, can listen in on your telephone calls, read you emails, and put a tracking device on your car? What about planting listening devices in your home when you go out? How about loading a virus on your computer so they can watch everything you do on the internet? All without a warrant.

• v. Do you want to live in a world where the police can hit you with a stick, or pepper spray you in the face, or shoot you (if you've lucky) with a taser because they don't' like your attitude, and think you're too "mouthy?"

• vi. How about a world where the police torture suspects to make them confess to crimes?

•b. Police in the United States have done ALL OF THOSE THINGS. Police in the United States ARE STILL DOING ALL OF THOSE THING.[5] But they do them only a minute fraction as much as they would like to do them, because sometimes, if they get caught, their evidence gets taken away from them, and they have to let the bad guy they worked so hard to catch go free.

Who keeps the police from running amok in their desire to rid society of the "bad guys?" Say it with me!!! Criminal Defense Lawyers do. Criminal Defense Lawyers look at search warrants to make sure they aren't based on lies. Criminal Defense lawyers send out investigators to talk to witnesses and gather evidence to show when police officers lie in their reports. Criminal Defense lawyers bring motions to exclude evidence that is illegally obtained by the police, and because they do, the police don't break the law... as much as they would otherwise.

Because Criminal Defense Lawyers are here keeping the police honest, everyone benefits. You don't live in a Police State, under the threat of being beaten and imprisoned by well-meaning but unaccountable police officers, because Criminal Defense Lawyers keep them accountable.

Once again I think we could stop right here. INNOCENT PEOPLE, ROGUE POLICE, society needs Criminal Defense Lawyers and I am honored to be counted among their number. Thank you goodnight! ... But we aren't done yet. There is another very good reason to feel good about the existence of Criminal Defense Lawyers in your community, and that is the issue of overcriminalization.

Police aren't the only ones who go a little nuts in their response to crime. Politicians love nothing more (really, they literally love nothing more) than being labelled "tough on crime." The only thing that seems to get the politicians more riled up than the general idea of being tough on crime, is being hardcore tough on the particular crime that is getting new attention at any given moment.

When I was still in law school a very good friend of mine called me one day and told me that his cousin (hereafter "cousin") had been arrested by the Los Angeles Police Department.[6] Apparently the 18 year old cousin was part of a Filipino Tagging Crew that decided that they needed guns to protect themselves from the more serious street gangs in their neighborhood. Cousin and his friends, all of whom were kids from middle class families with money, went to a low level drug dealer who had provided them with marijuana for a number of years, and gave him money to get them guns. A few weeks went by and he failed to deliver. So cousin and his friends asked for their money back, and the scumbag drug dealer refused. What happened next was unfortunate for all concerned. Cousin and his Filipino compadres got guns from someone else, paid a visit to their drug dealer, and, guns in hand, pressed the issue of their refund. Because scumbag drug dealers don't keep that kind of cash at his scumbag drug dealer apartment, they took this person, at gunpoint, to the bank, and forced him to withdraw the maximum amount and give it to them. They then kicked the scumbag dealer out of their car and let him go.

This was, of course, criminally wrong. Society cannot allow people, even those who are genuinely owed money, to come and take that money by force, and especially not through force involving firearms. All concerned, when they were caught, which took less than 48 hours, should have been arrested, and placed in the county jail for several months, or even a year or more to press home the point that they should never even think of doing something like that again.

That's what should have happened. In reality they were charged with not only robbery with the use of firearm, but kidnapping for financial gain. Kidnapping in the state of California, is defined as the forcible moving of a person from one place to another.[7] This crime carries a maximum prison term of eight years. When the kidnapper uses a firearm that adds ten more years to the existing felony maximum. Robbery, in the state of California, is defined as the taking of the property of another through force or fear. It carries a maximum penalty of five years in prison, with a similar 10 year enhancement for use of a firearm.[8] ... Oh, but this wasn't a normal Kidnapping. This was a Kidnapping for Financial Gain. Kidnapping for financial gain carries a sentence of 15 years TO LIFE in prison. Making the total exposure that cousin and his friends faced in this case... Thirty Years to Life in Prison.

Had the Los Angeles District Attorney's Office decided to charge an additional "gang enhancement" under 186.22(b)(1) an additional ten years would have been added to the maximum making the maximum total Forty Years to Life in Prison.

These kids literally could have beaten the scumbag drug dealer to death and set both him and the bank on fire, and have been facing only two more years than they were facing for this robbery.[9] Each of them took a plea deal for a 14 year sentence to be served at 85%.[10]

Why do we have such stupidly inflated sentences for certain crimes that are no worse than many other crimes that we punish less severely? Politicians.

Our modern Kidnapping for Financial Gain statute was a massive overcompensation by the California Legislature after the Lindberg baby abduction. This wasn't even a California Case (it happened in New Jersey), but the National Attention made parents everywhere afraid for their children, and the California legislature responded with "tough on crime" legislation to make sure that ransom kidnappers would be dealt with as harshly as possible.

The ten year firearm enhancement and the ten year gang enhancement are products of the gang warfare that has scarred American Streets over the last several decades. Never mind that this gang warfare has been funded and spurned on by our nations failed War on Drug Users, or the fact that the child gang members who are the most violent offenders, clearly are not afraid to die, let alone to be locked up in Prison, our legislature's response to the supposed tidalwave of gang crime[11] has always been to make sentences increasingly harsh.

The only good news, is that despite the legislature's best efforts, judges are able, in appropriate cases, to use their discretion to ignore some of these enhancements, or to otherwise lower sentences appropriately. They need, however, to be pushed in the right direction by Defense Lawyers, while they are being pulled in the other direction by Law Enforcement.

So into this mess of badly written and confusing statutes, and the badly written confusing caselaw that has "defined and explained" those statutes, wades the Criminal Defense Lawyer.

The Criminal Defense lawyer is the only one in the Courtroom who stands next to the guy with two strike priors for burglarizing houses, and says... "Maybe we shouldn't put this guy in prison for 25-to-Life for the crime of possession of methamphetamine for personal use."[12]

What we also see in the criminal courts is the cases of the sort-of-guilty defendants. Not every case is clean one way or the other. Even in the case where the defendant is guilty of some crime, he or she may not be guilty of the actual crime they are charged with. Take, for example, the case of a hypothetical bar fight. Two men get into an argument when one brushes the other causing him to spill his beer. The aggrieved party begins yelling for an apology, and the bumper tells him to shove it where the sun doesn't shine. At this point the aggrieved party takes his beer class and shatters it over the bumper's head. Bumper falls to the ground unconscious. Aggrieved party flees the scene without striking any other blows. What crime has he committed?

California defines simple battery (under Penal Code 242) as an unlawful harmful or offensive touching of another human being. This certainly seems to be the case here. It carries a possible sentence of up to a year in the county jail.

California has a different statute for an assault with force likely to produce great bodily injury (under Penal Code 245(a)(4). This carries a possible sentence of up to four years in prison, but is a nonstrike.

California also has a statue for assault with a deadly weapon (245(a)(1)). This statute also carries a possible sentence of up to four years in prison, and is a strike offense.

Finally, California has an attempted murder statute (664/187) that in this hypothetical (as a second degree attempt) would carry a possible sentence of 9 years to life.

Which of these statutes should our hypothetical defendant go down on? How much of the maximum sentence should he be given? The prosecution will advocate for one position, and the defendant will (probably) want to advocate for a different one. It is the Criminal Defense Attorney who speaks for the client (and opposite the lawyer for the government) during this process. It is also the role of the Criminal Defense Lawyer to take the defendant's case to trial when the prosecutor makes the abusive decision to charge the defendant with the attempted murder. I can tell you from experience that there ARE prosecutors who will do this. In fact there are prosecutors who will do this in the hope that the 9 year to life sentence will force the defendant, out of fear, to settle his case rather than invoke his right to trial. This is horribly unethical, but prosecutors do unethical things sometimes. If there is no one to oppose them, their unethical conduct goes unchecked. It is one more role of the Criminal Defense attorney to keep this from happening.

The television show "The Simpsons" once decided to jump on the cheap "bash the lawyers" bandwagon and had their resident hack stereotype lawyer ask "Can you imagine a world with lawyers?..." Break to a short video bubble of people of all ages races and creeds dancing in a circle holding hands. Very funny.

The organization "Consumer Attorneys of California" did a brilliant video answering this comment. You can watch it at.

https://www.youtube.com/watch?v=3j6_S9lJ73o

That video, of course, only covers consumer attorneys. What would a world without Criminal Defense lawyers really look like? Do you want to live in that world?

I don't. That's why I do what I do.

Greg Hagopian - March 28, 2015


[1] For our purposes here I am considering the Police and the District Attorney's Office to be part of the same team. They certainly think of themselves that way, and so it only fitting they should be treated as such.

[2] Google "LAPD Rampart Division" for some of the most stunning examples of this.

[3] In the Los Angeles District Attorney's Office most cases are not "vertically prosecuted" meaning that different attorneys handle the Arraignment, the Preliminary Hearing, and the Trial. This particular attorney was the Trial Attorney for the case, so he was handed a box of police reports, pictures, videos, and other evidence that someone else had organized, and which he asked me to summarize for him.

[4] A Six Pack Photo Lineup is a devise used by most police agencies to get identifications from witnesses. They take a picture (usually a booking photo, as was the case here) of their suspect, and then find photos of five other people who look similar to that suspect. They show the sheet of paper, with all six photos on it to the witness and ask them to put their initials next to the picture of the person they saw.

[5] If you don't believe that police in the modern age torture suspects I suggest looking at the Amnesty International website article located here: http://act.amnestyusa.org/ea-action/action?ea.client.id=1839&ea.campaign.id=27877&ea.tracking.id=Country_USA~MessagingCategory_SecurityandHR~MessagingCategory_Torture

[6] For privacy reasons I have omitted the actual names of the parties here.

[7] Any person. Adults can be kidnapped. It really is bad term. We should probably say simply that people are "napped." But I digress...

[8] Technically the enhancement can only be used once, even for multiple crimes, if they stem from the same "course of conduct." Thank the legislature for small favors.

[9] Arson carries maximum term of 8 years in prison. Second degree murder carries a term of 25 to life in prison. The total would then be 32.

[10] Most sentences are served at 50% accounting for good behavior. Violent Felonies, which Kidnapping is considered to be, are served at 85%.

[11] Actually state-wide Gang crime, and street crime in general has been steadily declining since the mid 1990s.

[12] This was an actual case of mine. I note with a great deal of pride in my State the because of the wisdom of the People of the State of California who, through referendum votes, overturned the stupid laws passed by our legislature, that the Three Strike Law no longer applies to low level felonies, and that possession of Methamphetamine for person use is now a Misdemeanor rather than a felony offense. That being said, three years ago when this case actually happened. The Tulare County District Attorney Prosecutor (His name is Benjamin Taksa, and he is still working there) got up in Court and argued to the Judge that a man should be sent away for 25-life for having a small bag of meth and a pipe in his pocket. Really.

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