Prosecution and Defense — Switching Roles

November 23, 2007

For years there has been criticism of the way we pay public defenders.  Everyone knows that public defenders have way too many cases to give enough time to each.  The pay is so bad that the public defenders in New York City recently sued the City of New York, alleging they were paid so little per case that their clients were being denied due process of law. The appellate court agreed they should be paid more, but just a little bit more.   So it remains scandalously low there and many other places.

Now retired U.S. Supreme Court Justice Sandra Day O’Conner has a suggestion.  This month she said if she had a magic wand she would try to make prosecutors and public defenders comparably paid and trained. She said she would like to see states create a staff of public lawyers “who would spend some time on both sides”.  She says we should try the English model.

In England, public prosecutors and public defenders trade positions every few years.  Today’s prosecutor is yesterday’s public defender and vice versa.  This gives the person in each position a deeper understanding of and respect for the other.

My own personal experience confirms this.  During the years I was a Assistant District Attorney and as supervisor of other Assistant District Attorneys, I observed that experienced private defense attorneys could always cross examine witnesses better than prosecutors, including me.  This is because prosecutors just do not get the experience cross examining witnesses that defense attorneys do.  I was a prosecutor for eight years, but I never got a chance to cross examine witnesses on a routine basis, the way defense attorneys do.

Of course, even after practicing as a criminal defense attorney for twenty five years, cross examination continues to be a skill that needs development and sustainment.  Every witness must be prepared for extensively with the understanding that no matter how much preparation and anticipation for a witness, the unexpected will arise.  However, thorough understanding of the facts and law of the case along with an appreciation of the particular witness will empower a defense lawyer to control the unexpected.

Switching roles, as retired Justice O’Conner suggested, would also give defense attorneys an appreciation of the skills and the role of a prosecutor.  That are some things many defense attorneys do not have because they have never served as prosecutors.  It really does make a difference, giving a defense attorney an advantage of insight into the process the prosecutor’s office follows and the strategic view each prosecutor will have.

Justice O’Conner did not have in mind the superior skills a private defense attorney develops from serving as a prosecutor.  She had in mind an improved system of public prosecution and public defense for those who cannot afford to hire their won lawyer, of better understanding and smoother cooperation between the two sides.  But those who are accused of a crime who do hire their own lawyers to defend them should appreciate how the experience of serving as a criminal prosecutor for a number of years prepares a criminal defense attorney in unique ways which enable him to serve his clients.

Armed Robbery case goes to Federal DA for 2nd shot after state conviction

November 15, 2007

After a Carter County District Court Judge sentenced two defendants in state court for their armed robbery of a Grandy’s Restaurant, the United States Attorney for the Eastern District of Oklahoma thought he would try his hand in federal court.  The state court judge ordered a sentence of 75 days in the county jail, followed by 5 years probation and a deferred sentence, to Larry Lamar White and Andron Dyshaun Thompson for their crimes of a Grandy’s Restaurant in Ardmore, Oklahoma.

The United States Attorney didn’t think that was enough time, so he presented the case to a grand jury, and the grand jury handed up an indictment for prosecution in federal court.

Isn’t this Double Jeopardy?  Not according to prior decisions made by federal appeals courts under the “Petite Policy”, where federal prosecutors believe justice has not been served in the state courts.  By United States Department of Justice policy, the local prosecutor’s request must be approved by the Department of Justice in Washington before proceeding to indictment.

Now, with this new federal prosecution, defendants White and Thompson are facing not less than 10 years under the federal Sentencing Guidelines – which is a big difference from the 75 day sentence handed down in state court.

This same federal prosecutor in the Eastern District of Oklahoma has a history of going after state court defendants. He previously took the case of  Kenneth Barrett, after the state court jury in Sallisaw gave Barrett a twenty-year sentence for killing a state trooper as he was delivering a search warrant on Barrett’s land for drug trafficking. Barrett was then found guilty in federal court in 2005 and given the death penalty.

What’s more, this same federal prosecutor is looking at another conviction from the same Carter County District Judge.  The judge gave a 60-day jail sentence to the robber of a convenience store.  The robber used a BB gun for the robbery, but he made things worse after he was arrested.  He kicked out the window of the police car and tried to escape.  This made the police mad, and they were already mad from the sentences given to Thompson and White, so they were demanding a stiffer sentence for the convenience store robber.

Federal prosecution of a state court defendant is extremely rare, so that is not a common issue to watch for.  The state court judge always has sole discretion to decide the sentences in a plea without any agreement, like the sentences in Carter County of  Thompson and White, because the defendants’ lawyers directed their clients to enter “blind pleas.”

A “blind plea” means there is no agreement with the District Attorney, and the decision is completely within the hands of the judge.  If the decision seems too light to the District Attorney, there isn’t much he can do about it. Similarly, if the sentence the judge gives seems too heavy to the defendant or this lawyer, there isn’t much the defendant can do about it.

That is why it is so important for defendant’s lawyer to know the judge well, to know how the judge rules in certain circumstances and what will influence his decisions.  It is still a guess in many ways, but it is an educated guess, and sometimes it is the only way that is practically open to a defendant in those particular circumstances to lessen a potentially severe sentence.

Lawyers Showing Courage for Democracy

November 8, 2007

We all like to remind ourselves about the courage of the Founding Fathers of our country, who risked their lives and property in establishing the United States. Where is that courage today? Not in the many bar associations around the country. They are afraid to do anything to ruffle anyone’s feathers. They are notorious for passing around honors from one firm to the next, trading the limelight, and generally patting one another on the back.

Contrast that with what is taking place today in Pakistan. Today, General Musharraf has suspended the Constitution in Pakistan, a step toward imposing martial law. Who is willing to speak out against this, to stand up for their Constitution? The lawyers of Islamabad, Lahore and other cities and towns.

These brave professionals defied the military by demonstrating in the streets, crying out their condemnation at the General’s illegal acts and even throwing rocks at the police. They were predictably beaten with batons about the head, threatened with bullets, and dragged away to the jails. With their voices alone, they defy the weaponry of the police and military. And the Musharraf government is arresting lawyers all across Pakistan regardless of their demonstrations – but only because of their anticipated opposition to the actions of Musharraf.

Such unarmed heroism is in the greatest tradition of Mahatma Ghandi who, after practicing in South Africa, employed his passive resistance next door in India, to obtain India’s independence from the British. Martin Luther King, Jr. was his pupil.

Besides suspending the Constitution, General Musharraf fired all members of the Supreme Court and judges in the four provincial High Courts. He is keeping many of them under house arrest. Now he is now trying to replace those judges by swearing in new replacement judges loyal to his government.

The patriotic lawyers, besides taking to the streets, have a strategy to undermine the courts of the Musharraf government. The lawyers intend to subvert the courts now run by Musharraf stooges by paralyzing the business of the new courts. They will try to get all lawyers to refuse to do business in the courts, to deny acceptance of the new judges. Pushing still further, the lawyers are leading the resistance, even ahead of the political parties, who have yet to act or even declare their intentions. The lawyers of Pakistan are not only the practitioners of, but the guardians of, democracy.

No where is there a better example of lawyers fighting for the rights of their clients– to ensure a process of fair treatment in the court system. While people accused of a crime in Oklahoma can’t hire one of these brave Pakistani lawyers, they should look for a lawyer who has those qualities — knowledge, experience and determination to fight courageously for your rights. This is a good reminder that, whether in Pakistan or in Oklahoma, those are important and essential factors in defending the rights of the accused.

I believe it’s important for those facing criminal charges in Oklahoma to be educated on their options so I invite you to visit my web site at where I help you determine how to find the right lawyer for your case.

Latest Incarceration Statistics

November 2, 2007

According to the Bureau of Justice Statistics inmate population in the United States has been increasing in real numbers and statistically. Nationally, 2.1 million people were in custody in federal, state, and local jails of the United States in 2005. According to the Oklahoma Criminal Justice Research Center, it has increased more for Oklahoma. The current incarceration rate per adult population is 45% higher in Oklahoma than for the United States.

One of every twelve adults in Oklahoma have been either in prison or on probation for a felony. At the end of August, 2006, 1 % of every adult in Oklahoma (aged 18 and older) was in prison.

In the ten years from 1995 to 2005, state prisoner population in all the states increased at the rate of 14%, from 379 per 100, 000 population to 433 per 100,000. However, Oklahoma bettered that rate of increase with a figure of 22% increase in that period, from 536 prisoners per 100,000 population to 655 per 100,000 by the year 2005. For the last twenty years Oklahoma has ranked every year among the top four states statistically in the rate of incarceration.

And, once again, as it has done historically, Oklahoma led all other states statistically in the incarceration of women in 2006.

I’m afraid this bad news for people accused of crimes in Oklahoma means that it continues to be critical in this state to seek out the best criminal defense lawyer. Thinking that all lawyers are the same and choosing a lawyer based on the lowest price can truly be a costly decision. Every part of your life (your freedom, your family, your employment) is affected by a conviction of a crrime. If you needed a brain surgeon you probably wouldn’t choose one based on who charged the least, and likewise, you don’t want to entrust the defense of a criminal case to the “cheapest” attorney, that is, if you care about your future and how it affects those around you.

The good news is that you can prepare yourself by discovering what you need to know to make the best decisions. Anyone facing a criminal charge in Oklahoma can go to my website at to find out how to choose a lawyer. You should also request a “Protect Your Freedom” kit which gives you critical information for this stressful situation. The kit is free to anyone charged with a crime in Oklahoma or to family members of someone charged in Oklahoma.