A Fair Fight: Winning Your Criminal Case Against the Odds

The American criminal justice system is based on the idea of a dialectic: two equally matched foes battle to present their arguments to a neutral fact finder. The fact finder — usually a jury but sometimes a judge — decides who made the more persuasive argument and pronounces “guilty” or “not guilty.”

The Founding Fathers were concerned that the State not have the power to oppress the citizens.  That’s why they put so many fundamental rights in the Sixth Amendment:

1. The right to a speedy trial
2. The right to a public trial
3. The right to be judged by an impartial jury
4. The right to be notified of the nature and circumstances of the alleged crime
5. The right to confront witnesses who will testify against the accused
6. The right to find witnesses who will speak in favor of the accused
7. The right to have a lawyer

This system only works, though, if the two sides have equal access to resources. It is a warped and ineffective truth-finding process when one side is overwhelmingly better supplied with people, technology, and money.

But that is the case in every single criminal prosecution. It’s never a fair fight.

The defense – the citizen who has been charged with a crime – can be  overwhelmed by the prosecution’s access to resources. Take investigators. To properly represent a defendant, you need to talk to witnesses, look at the scene, and collect evidence.

When I represent a client, my ability to conduct an investigation is limited by how many investigators the client can afford to hire (usually one or zero). When the prosecutor wants to investigate, he or she has city police, county sheriff’s deputies, state Highway Patrol, and their staffs. That’s thousands of people!

For scientific investigation, looking at DNA, testing alleged drugs, comparing fingerprints, or analyzing video, we may or may not be able to afford to hire an expert. The prosecutor, on the other hand, has hundreds of Bureau of Criminal Apprehension (BCA) scientists at his or her beck and call not only to conduct tests but to testify at trial.

The citizens can still win.  We can even the odds. I do this by relentless focus on the conduct of the police and their agents. The more people they throw at a case, the more people whose conduct is subject to scrutiny for bias, error, or poor judgment. In this country, police need a reason (“particularized, individualized suspicion of wrong doing”) to even start an inquiry. To arrest someone, the police need to meet a higher standard: probable cause which is more than “a mere hunch.” (Terry v. Ohio).

Doggedly holding the prosecution to its constitutional constraints every step of the way, from initial contact through arrest, forces the prosecution to prove they dotted every “I” and crossed every “T.” Too many arrests are motivated by an “ends justify the means” mentality, and rigorous study of the case file, the police training, the body cam footage, and the reports always exposes shortcuts and mistakes.

One quick, nerdy, example: in a DWI arrest, the police officer likely conducts a horizontal gaze nystagmus test (the one where he or she waves a finger in front of your eyes).  That test has to be performed accurately to conform to the scientific validation studies that support its use to determine alcohol impairment.  Most police don’t do it right (it requires 8-12 passes over nearly a minute and a half at different speeds and stopping and starting

at different positions). If the cop does it wrong, the test is useless and can’t be used to prove impairment.  I also look at who trained the police officer on conducting this scientific test.  Hint: it was another police officer, not a scientist.  I look at the studies underlying the test and if they apply to my client.  I look at whether the conduct of the test conformed to the rigorous scientific protocol underlying its justification: you can’t determine in a lab setting that this test proves alcohol impairment under controlled conditions, then apply it on the side of the road, haphazardly performed, and say it proved the same thing as the controlled study.

This is just one of scores of details that often do not hold up to intense scrutiny and can cut the legs out from under a prosecution.  They have the battalions of scientists conducting the validation studies and training the armies of police officers, but I have their studies and their training manuals and can study those materials and the videos, training, and performance of many procedures and processes to determine if they did it right, whether your rights were vindicated at the first encounter, at the arrest, during the interviews and interrogations, during the investigation, and during the collection of evidence.  Each step has scores of components that are subject to my intense scrutiny.

Finally, and most importantly, the prosecution must prove to a jury of citizens that the person who has been charged is guilty “beyond a reasonable doubt.”  The American jury system was designed as a deliberate bulwark against oppressive government actors.  Thomas Jefferson wrote to Thomas

Paine, “”I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”  At the end of the day, juries tend to know what is fair regardless of the layers of officialdom that are used to obscure the facts.  Juries even the odds.

When you’ve been accused of a crime and you’re facing life-changing consequences if convicted, that enormous disparity between the prosecutor’s resources and your attorney’s is not academic.  You need an attorney who can even the odds.