The Law Offices

Too often I've sat in court, while waiting to appear with my client, and I would have to sit and bite my tongue while someone in the black moo-moo violated all of some poor defendant's rights.

It usually happens like this.

Someone comes to court for their first appearance, usually on a misdemeanor DUI, domestic violence, narcotics or prostitution solicitation (sex) case. As soon as the case is called, the judge starts talking about pleading guilty.

For example, a judge in Palo Alto stated (on the record), "You can go ahead and hire a lawyer, but I know this District Attorney, and she's really good. She's never lost a DUI case; even one Public Defender fought a DUI case against her. He thought he was so smart. He lost, too. So you can waste your $5-10,000 if you want. But, I'll go easier on you if you plead now."

I was trying a case against this same D.A. and I didn't think she was all that great. I guess the judge scared the guy pretty badly.

Then, the judge started reading from the police report, talking about unsafe lane changes, swerving and a preliminary alcohol screening that was over the legal limit. The judge further smeared the poor fellow about his prior driver's license suspension, and a failure to appear.

The defendant interrupted and stated, "But that license suspension is an error, and I think I need a lawyer to clear that up."

The judge said, "Look. It's my job to clear my calendar. You're not going to win at trial. So don't waste your money."

Soon the defendant started to cower, and said, "Well. You are the judge, and I understand what you are telling me. I'll just plead guilty."

The poor fellow signed the plea form, and left the court. I'm not sure he really understood the consequences of his plea. The judge did not read out the standard admonitions (warnings) about how he was waiving all his constitutional rights. He'll get some pretty big surprises in the mail. I was surprised to learn that blatant and horribly irresponsible violations of people's rights still happen every day in our courts.

I spoke with a few people I met on the street about this event. I spoke to my barber. I talked to a security guard, and a few friends. The general experience in cases like this is that people feel guilty, and because of their inexperience with the criminal justice system, people cannot imagine how they might fight the case. Most people when confronted with a situation like this, just do what the judge says. He is, after-all, the judge.

I must speak out on behalf of "The System." This is not "Law and Order." The police and the prosecutors don't win every time. Believe me. In all the San Francisco Bay Area counties where I practice law, I see the Public Defender's offices kicking the prosecutor's in their pants, over little cases and serious cases. Private lawyers vary in their abilities. Get a tough guy who's not afraid of a good fight. Don't get a deal maker; deal makers don't get good deals.

If you can't afford a lawyer, then ask for a Public Defender. You must never plead at your first court appearance. Never admit anything. Never say a word other than, "I want my lawyer." The judge is required by law to give you up to two weeks to secure representation. NEVER EVER EVER PLEAD AT ARRAIGNMENT! THAT'S AN ORDER!

First, you are not a lawyer. You don't practice day in and day out in criminal courts. You are not an expert in the intracacies of criminal law, constitutional law, criminal procedure, the vehicle code, the health and safety code, evidence law, and case law (among others). How can you possibly know whether you have a case or not? Even if you don't have a good case, accepting what the judge says can cause you real problems.

Look at our above example; that poor guy might not have had a good case. But by taking that plea, he may be admitting the prior conviction, which would make his sentence worse. If he had a lawyer, the lawyer could have forced the D.A. to prove the prior, and if the D.A. couldn't, then the defendant could get a lighter sentence. Because he may have admitted the prior, if he ever gets another DUI, he might actually get some time in the county jail (up to six months).

A good lawyer should be able to rattle off three to five possible defenses for any criminal case. In a DUI case, you might have a "rising defense," the machine could be faulty, the test could be faulty, the cop could be faulty, there might be constitutional violations. There are so many ways to fight a DUI case; some lawyers specialize in only DUI cases. By all means, get a lawyer.

If you don't have a defense, then you need a lawyer to play damage control and get you the best deal. Even if you cannot afford a private lawyer; you must get a Public Defender.

People bad mouth Public Defenders all the time, but you have to remember; they are over worked, and have hundreds of cases. They may never see you, or talk to you, during the life of your case. It's not pretty, but it's real. The fact is, they've handled so many cases that usually they really know quite a lot about the law and how to defend cases. Whether you like Public Defenders or not, you are way better off having one, rather than going it alone against the judge and the D.A.

What the judge did in our example was not in the interest of the defendant. That judge didn't care one bit about that guy. He was interested only in himself. He wanted to clear his calendar, pure and simple. If that meant some poor blue collar fellow would lose his license, his ability to work, drain his bank account, and put him on probation, and put his whole future at risk, then so be it, says that Palo Alto judge.

He trampled the poor defendant's constitutional rights. By robbing him of his right to have counsel, that Palo Alto judge was robbing us all of a justice system where the little guy has a chance. He made sure that Uncle Sam was King Sam in his court. The D.A. and the Judge were like two beach volleyball teammates, bouncing the ball to one another, setting each other up to spike one in the defendant's face.

If you don't have a guy on your team; you will lose. If you have a lawyer on your side... Who knows? You could win.

Anyway, I was sitting there, quietly, the whole time. How could the judge believe he had this much power? The Santa Clara County system is beyond broken. At the first court appearance, the Public Defender was not allowed to be there. The D.A. was there, though. If there was a Public Defender there; the judge could not do that. In San Francisco, that could never happen, because the Public Defenders would raise hell, if a judge acted like that. I would have loved to jump in and level the playing field.

My problem, at that time, was that I was private counsel and retained to protect only my client. I had a responsibility not to cause and raucus and prejudice my own client's chances of winning.

Incidently, in my client's case, the judge and D.A. wereboth fighting on the same team to delay my client's trial, and violated his right to a speedy trial. See, if the judge or D.A. aren't ready for trial within 45 days on a misdemeanor case, then they have to dismiss it.

They were playing games to try and stop the clock. However, my client has great lawyer; we're filing appeals, writs and motions. We're fighting a smarter court battle. His case will get dismissed, because his lawyer knows what he's doing.

My client is one of those kinds of people that "don't take any crap from anybody." He has a fighting spirit. Everyone should have a fighting spirit. However, if you were not endowed by the Creator with a warrior heart, then hire a lawyer that is. I promise you that if you get a good lawer (not just any lawyer), but a well-regarded, smart and tough lawyer, your life could change. Just when the system feels like it's going to pull you down (and keep you down), you could have a lawyer use his skill and courage to pull you up, and set you free.