Law

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It’s a Trap!

I jokingly posted on Facebook right after New Years the following:  “I wonder how many calls I’ll get in the next few days from potential clients saying ‘Those DUI checkpoints are entrapment!'”

This led to many questions. Let’s see if can address some here.itsatrap

Entrapment is when the police lure you into doing something you wouldn’t normally do, usually coercing or bribing you into committing a crime (usually with codefendants). It doesn’t happen that often.

If the police sit near a bar and then start following cars to pull them over when they show signs of intoxication, that’s not entrapment. The police officer did not coerce you to drink and drive.

If there is a sobriety check point, that is not entrapment. (It may be illegal for other reasons, such as the police did not get approval from a judge first, or they are not checking drivers in a random fashion but instead are targeting people). Once more, they didn’t coerce you into committing a crime; they just caught you at it when you didn’t expect them to.

If an undercover cop is posing as a prostitute and you engage her services and then she arrests you, that is not entrapment. You could have said no to her offer.

“Entrapment” requires the police getting you to do something you wouldn’t have done absent their involvement and encouragement. If you say no and the cop insists and insists and finally convinces you, then your case is stronger for entrapment.

Just putting a prostitute out there and having someone take advantage of it is no more entrapment than having a bank there. “They entrapped me into robbing the bank by having it just sitting there!”

Here’s an extreme example to show what entrapment is:

“Hey, would you do me a favor and go buy some drugs for me? Here’s $100, you can keep $50 of it.”

“No, I’m not going to do that.”

“Okay, here’s $200, you can keep $150 of it.”

“No!”

“Okay, here’s $500, you can keep $450 of it.”

“Ooh, I could really use that money. Okay, just this once.”

“Caught you! You’re under arrest!”

Most cases where entrapment is used as a defense aren’t as obvious as that example but you can see the basic point. There is no bright line test. It’s up to a defendant to convince a judge or jury that he wouldn’t have done the act absent the cop coercing him to do it.

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It’s not about the pussy

I have had clients who grabbed women when they didn’t want to be grabbed.  You can read all about these clients on the Megan’s Law website, listing sexual predators.

Donald Trump’s statements about how, as a star, he can “grab women by the pussy” and kiss them and get away with it are upsetting, but he and his supporters don’t get why it’s upsetting. He defends himself by saying it’s just “locker room talk” and other defenders are saying “Oh, yeah, well worse things are said by rappers!” (None of whom, it should be noted, are running for President of the United States.)pussywagon1

Look, It’s not the word “pussy” that is objectionable — it’s the word “grab.”

Trevor Noah pointed this out on the Daily Show:

You tell me which is worse: “Yesterday, I escorted a young lady back to her residence and proceeded to caress her genitals despite her lack of invitation.” or “I was rolling with this bad bitch and asked, ‘Yo, you gonna let me smash that ass?’ When she said no, I was like, “OK, no pussy for me!”

 Which one is worse? While neither is ideal, one is crude and the other is against the law.

“Oh, yeah?” the Trumpettes scream. “Why are all the women who read 50 Shades of Grey getting all upset?” Well, maybe it’s because they can tell the difference between fiction and reality. I mean, come on, I liked the movie Mad Max but that doesn’t mean I’d like to live there.

And even so, as I’ve said before, 50 Shades is a BDSM fantasy that many people have. In real life, there would be a safe word there but having the characters in the movie use a safe word would ruin the fantasy. It would be like having James Bond turn to the audience and say “You know we’re not using real bullets, right?”

But you know what’s worse?  Many Republicans don’t seem to care about this.  Billy Bush, the guy who did the interview with Trump that led to these quotes, was just as bad and he lost his job because of it. It’s a shame that the standards for a TV show host are higher than those for the Republican candidate for President.

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Should you talk to the police?

No.

That was easy!

Oh, fine. Let me go into a little more detail.

If you are the victim of a crime or need assistance in any way, absolutely talk to the police. But that’s not what this question is really asking. If there is any way that you might possibly be considered as a criminal, should you talk to the police (without a lawyer)? The answer is always no.shut-up

The main reason is that people just don’t know when they should or should not talk. So it’s better to just not talk in all situations.

Will it help you to talk to the police sometimes in these situations? Only if you have an air-tight alibi. (“I was in Europe all week, here’s my passport.”) The problem is that many people think what they say will help, and it doesn’t.

“If I explain to the cop why I hit the guy, he’ll certainly understand and not charge me” will not help you.

“Yes, I was there but I wasn’t involved with any of those guys” just gave the police half of what they need.

“I only had two beers, so surely the cop will understand that I’m not really drunk if I tell him that” isn’t in your best interest to say. (Unless maybe you actually are talking to Shirley the cop.)

It’s not your job to prove yourself innocent. It’s their job to prove you guilty. They need to prove that you were there, that you did something, and that the something you did was against the law. If you say, “Yes, I was there that night, but that didn’t happen” you’ve already made 50% of the case for them.

Remember: the police are trained to get confessions. That makes their job so much easier when that happens (and makes my job so much harder). Note that I said they are trained to get confessions. That’s not the same thing as saying they are trained to get the truth.

Look, I’m a trial lawyer. I’m trained to get confessions in a different way. I look at the statements made by officers and witnesses and look for errors, mistakes, misunderstandings, and lies. And I will use what you said against you at trial whenever I can. You’ll have to explain why you said what you did when you did. You think the District Attorney isn’t going to do the same thing to you, the defendant? Why give the DA the ammunition needed for that?

No, remain silent, as is your Constitutional right. Provide your name and address and identification if asked; don’t argue with the officer; don’t talk about your rights; remain polite and calm. Let the lawyer do the arguing for you later.

If nothing else, by not talking, I can work out a better deal for you if you have to plead to a crime. If you’ve already given the police everything they need, I have nothing to negotiate with on my side; nothing I can offer in exchange for a better deal.

The best legal advice I can give anyone is really quite simple:

Shut up!

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Why do DAs use Grand Juries? (And Why the Ferguson Grand Jury was a Sham)

In every other country and in many of the states, Grand Juries are no longer used.  And for good reason.

If the purpose is to determine whether there is enough evidence to bring a case forward, it’s much better to have a preliminary hearing instead, open to the public, where evidence can be challenged by a defense attorney and reviewed by an independent judge.  grandjury

Yet in states that allow Grand Juries and have preliminary hearings, DAs still use them.  Why?  (If you didn’t read yesterday’s blog about what Grand Juries really are, please read that before continuing.)

A District Attorney usually knows whether he or she will bring charges — and, after all, the chance of a Grand Jury not indicting is smaller than the chance of being hit by lightning, so why do they go through the process?

Because it gives them an advantage.

It allows them to put witnesses on the stand, under oath, without having to deal with defense attorneys objecting or judges stopping them from asking questions they are not supposed to be asking.  And then they have advance notice of what witnesses will say at the preliminary hearing and at the trial.  If a witness changes his or her testimony, the DA can whip out the transcript of the Grand Jury and impeach their testimony.  It’s also a great way to grab up a bunch of suspects, get them under oath, and force them to testify so you can figure out who to charge for the main crime and who to charge with conspiracy.  (Note:  Defense lawyers are allowed to attend but can only advise their clients not to speak; we can’t object to questions or cross-examine.)

The rules here in Pennsylvania allow DAs to hold onto those transcripts of the preliminary hearing and not show the defense attorneys until the actual literal last minute.  Seriously.  I had a trial last year that lasted three weeks and after one of my witnesses took the stand, then the DA had to give me a copy of the transcript from the Grand Jury that he was going to use to impeach her during his cross-examination.  The trial stopped for an hour while I and the other defense counsel rushed through reading it so we could “prepare.”  No wonder DAs like that!

That’s why many lawyers (on both sides) know the Grand Jury system is a sham.  It’s a waste of taxpayer time and money, and harks back to old English common law, predating the Constitution and the rights we usually take for granted (such as open hearings and the right to cross-examine).

DAs also use them for political reasons. In the Ferguson case, it was used to shield the DA from a crime he really never wanted to prosecute in the first place.

He held a Grand Jury and acted more like a defense attorney — even calling the defendant cop as a witness so he could tell his side of the story.  Got that?  The DA called the guy he was supposedly going to prosecute and gave him the opportunity to tell his own version of the story, and the defendant willingly did so — not exercising his right to remain silent — because he knew the DA was never going to prosecute him.

“This trial is a travesty. It’s a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham … ”  — Woody Allen, Bananas

Here’s what you need to remember:  A Grand Jury is not an adversarial proceeding.  It’s a government activity, run completely by the government.  And in this case, the government investigated the government and decided that the government did nothing wrong.

And that should make everyone mad, liberal or conservative.

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Top Ten Signs You’ve Got a Bad Trial Attorney

In anticipation of my trial tomorrow, I present:

THE TOP TEN SIGNS YOU’VE GOT A BAD TRIAL ATTORNEY

10. Constantly tweeting during the trial, and he’s not on Twitter

9. Requires every witness to answer in the form of a question

8. Asks if he can make a motion, and then does the Hokey-Pokey

7. Constantly says “If the glove don’t fit, you must acquit” no matter what the trial is about

6. Makes out with the District Attorney during breaks

5. All objections made by partner, Mr. Linty, a sock puppet

4. Uses air quotes when saying “Not Guilty”

3. Insists on doing his Pee-Wee Herman impersonation throughout entire trial

2. Gives closing argument in the form of an interpretive dance

1. Says “Wake me when it’s my turn to talk.”

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Plea Bargaining and Justice

Not too long ago I found myself facing two jury trials, one after the other, both with the same DA. We spoke about them and agreed that I’d probably win the first one and he would probably win the second one.

The exact opposite happened.justice

And that’s why most cases never go to trial … because everything is a gamble. Both sides would rather have something definite than gamble.

Some people who have no experience with the legal system have a strange idea that plea bargaining does not promote justice, when in fact it works just fine. The District Attorney asks for something way over here, I counter with something way over there, and when we meet in the middle — well, that’s probably where justice is.

Sometimes you have to go to trial. I refuse to take plea deals when they are no better than what I would get if my client would be found guilty. (This is especially true in very serious cases like murder or rape.) And sometimes my client insists on a trial, and the client’s wishes always prevail.

I advise all my clients though that every trial is a gamble. I’ve won cases I was sure I’d lose and lost cases I was sure I’d win, and every lawyer will tell you the same thing. They’ve even done social experiments where two separate juries have watched the exact same trial and have produced completely different verdicts.

Don’t get me wrong — it’s still the best system in the world. But no one should ever think that justice is perfect, that the good guys always win and the bad guys always lose, and that juries are never wrong.

(That’s one of the main reasons I am against the death penalty — I don’t believe there should be a penalty that is 100% irreversible when we don’t have a system that is 100% perfect.)

I went to court this morning ready for trial but my client decided at the very last minute to take the plea I had worked out for him months ago. He finally decided he wasn’t ready to gamble.

How do I feel about that, you ask? Well, personally, I like doing trials, and I like winning. I don’t mind the gamble.

But I’m not the guy going to jail if I lose. And that’s why it is ultimately up to my client to decide.