A Duty to Defend?

Had a potential client in my office this afternoon to discuss his pending criminal fraud charges. He is currently being represented by the public defenders office. He was concerned about the fact that the PD office would not file a motion to suppress that he felt very strongly about.

An attorney has a duty to represent his client in the best interest in the settlement of his case. This includes plea negotiations, pre-trial motions practice, and at trial if necessary or requested by the client.

Attorneys represent client. It must be remembered that the case belongs to the client not the attorney. That raises a question of how far does the attorney have to go during his representation of the client. Does an attorney have a duty to file a suppression motion if the client feels strongly about?

I believe that an attorney must evaluate the facts and circumstances surrounding the evidence subject to the suppression motion. This evaluation must be conducted by the attorney independently of the client’s wishes and desires. If there is any legitimate basis to prepare, file, and argue a motion to suppress, then I believe the attorney has an obligation to comply with the client’s request.

On the other hand, if there is no legitimate bases to prepare, file and argue a motion to suppress, then I believe the attorney has no obligation to comply with the client’s requests. Based on the attorney’s training and experience, sometimes hard decisions need to be made. It is up to the attorney to explain to the client the reasons for not filing the motion and to support those reasons with facts (or lack thereof) and the current state of the law.

Does your attorney have a duty to defend his client at any costs? NO. The lawyer is in the best position to make strategic decisions based on his/her training and experience. That is the reason that it is always best to hire an experienced criminal defense attorney.

If you have questions, contact the Law Office of Michael P. Hanle. I have over 20 years of experience handling criminal defense cases in the federal, state and municipal courts in the Birmingham, Alabama area and surrounding counties.

Jury Trial or Bench Trial?

Last week I tried two assault cases. Prior to trial, my clients and I made a decision to waive our right to a jury trial and proceed with only a judge as the finder of fact and law.

The decision to give up our right to a jury trial required a lot of thought and consideration. My clients and I spent many hours discussing this issue before making the decision.

In the end, it was the right decision. Both of my clients were found Not Guilty by the court.

I have had a number of attorneys call since the acquittal. They wanted to know why we decided to waive our right to a jury trial and what factors we considered before making that decision.

The most important factor in my mind was the judge involved in the case. I knew that my judge was fair and open minded. I also knew that he wouldn’t be overwhelmed by the alleged victim’s injuries.

We also had facts and witnesses to dispute the alleged victim’s version of the facts. The 911 call was made by my clients friend immediately after the altercation. It was spontaneous and told the story we wanted the court to hear. It was also supported by other witness testimony.

The disadvantage of trying a case to a jury is simple — you just don’t know what facts are going to influence their decision in your case. I didn’t know how the jury would react to the pictures of the alleged victim’s injuries. I didn’t want the jury to inject emotion into the case and ignore the clear facts. I didn’t want the jury to reject the defense theory because the victim was beaten and ended up in the hospital.

In the end, the decision to try this case without a jury came down to trusting the judge and creating a theory of defense that was both believable and made more sense than the story that the victim and his witness were going to tell.

The choice to waive our right to a jury trial worked in this case. Depending on your facts and circumstances it might work for your case.

For more information about my practice or to inquire about criminal defense representation visit my website Michael P. Hanle, Criminal Defense Attorney or call me at 205-930-9717.

No Drugs Needed. Alabama Court of Criminal Appeals affirms Manufacturing of Methamphetamine conviction without any drugs.

This past Friday, the Alabama Court of Criminal Appeals issues an opinion in the case of Wallace v. State of Alabama, 2013 WL 598057 (Ala.Crim.App. 2013). The defendant has been charged with Unlawful Manufacturing of a Controlled Substance – Methamphetamine in violation of Code of Alabama Section 13A-12-218 and Chemical Endangerment of a Child in violation of Code of Alabama Section 26-15-3.2(A).

The facts are a little confusing, but needless to say when the officers arrived at the house looking for stolen property, the wife consented to a search. Once inside, the officers didn’t find any stolen property but did find a “shake and bake” lab set up in a 2 liter coke bottle in the closet of the defendant’s bedroom. Additional items commonly used in the production of methamphetamine were also found in the home such as a funnel, rags, coffee filters, butane, and salt.

During the course of the trial, the State called the lead detective. He testified that he had special training in drug interdiction and was familiar with “shake and bake” meth production. He testified in detail about the process of producing meth from the beginning to the final product being produced. He testified that the lab he seized was only about half way through the process.

No expert testimony was received during the trial. The contents of the 2 liter bottle were ever analyzed by the Department of Forensic Sciences to determine if a controlled substance was actually present in the bottle.

The defendant was ultimately convicted. The defendant naturally filed an appeal arguing that without a controlled substance the defendant could not be convicted of manufacturing a controlled substance. Since no evidence had been admitted during the trial to prove that a controlled substance was present, you would think the conviction would be reversed.

Seem logical enough to most of the criminal defense attorneys I have spoken with. But clearly this same logic seemed to escape the Alabama Court of Criminal Appeals. The conviction was affirmed.

The Alabama Court of Criminal Appeals went to great lengths to detail other cases in which a defendant was convicted of possession of a controlled substance without that substance ever being tested. Key among their arguments was the case of J.M.A. v. State, 74 So.3d 487 (Ala.Crim.App. 2011) which provides a list of 4 Alabama cases that held a properly trained law enforcement officer could identify the appearance and smell of burning marijuana and therefore no additional testing was required.

There is a huge difference between the identification of marijuana and the identification of liquids inside of a 2 liter coke bottle. Marijuana has a distinct appearance and smell when burned. On the other hand, there are a lot of different ingredients that go into a methamphetamine cook. They must be added at precisely the right time and in the right order to have any chance of producing actual methamphetamine.

What if the defendant missed an ingredient along the way? What if he the added to much or to little of any particular ingredient? What if the defendant was just a lousy meth cook? How do you know what the end result will turn out to be until the process has run its’ course? How can a law enforcement officer legitimately know what is inside of that 2 liter bottle without some form of forensic testing? Is this proof beyond a reasonable doubt? I think not.

The Alabama Court of Criminal Appeals has gone out on a limb with this opinion. It is one thing to say that a trained law enforcement officer can identify marijuana without further forensic analysis, but it is another thing to say that a liquid consistent with the production of methamphetamine is actually methamphetamine without forensic analysis and confirmation. Their logic is flawed and appears to be an attempt by the Court to affirm the conviction at all costs.

This is bad law and needs to be challenged. Hopefully the defendant will seek certiorari to the Alabama Supreme Court.

If you have questions about a drug charge, contact the t Law Office of Michael P. Hanle or call 1-205-930-9717 to speak with me directly.

Thankful Client

Being a criminal defense lawyer can be a thankless job some days. Judges don’t like us. Prosecutors don’t like us. Victims don’t like us. Hell, even our client’s don’t like us some days. Client’s can be ungrateful SOBs sometimes.

However, every once in a while. Out of the blue comes a different kind of day.

Today was one of those days.

I have been working on a drug trafficking case for the last year or so. Client was pulled over for a traffic violation. When the cop gets to the drivers side window, the marijuana smoke rolls out and into his face. Having learned something on the street, my client promptly tells the cop that “there ain’t no more weed, we smoked it all.” Needless to say, after arresting him for driving on a revoked license the police find cocaine and oxycodone inside his vehicle.

We were in court this morning prepared to enter a guilty plea or begin a trial. We have spent countless hours discussing the facts of his case. We have discussed trial strategies and plea offers. I prepared and filed a suppression motion in an effort to keep out some of the evidence. I have spent a lot of time thinking about this case and the best way to defend my client.

I have beaten the District Attorney down from her original plea offer of a 20 year sentence. I managed to get her to offer a 20 year sentence with 3 years to serve when my client asked for a split sentence offer. I finally got her to offer a 15 year sentence with 3 years to serve. I have worked hard for my client and listened to his requests and finally got a straight 15 year offer.

Today, on my advice, my client entered a guilty plea and applied for probation. He realized that the facts and law were against him and taking his case to trial would mean a longer sentence. We will be back in court in April to argue for probation before a judge who will listen to my arguments.

He called me this afternoon to tell me thank you. He said that sitting in the courtroom this morning, talking to other people, made him realize what a great job I have been doing for him. Other people were talking about their problems and what their lawyers had been doing for them. It has taken my client over a year, but he understands how hard I have worked for him.

Even though I know that I am good at what I do, it still is nice to hear it from my clients from time to time.

Sitting in my office smiling this afternoon. Thanks.

Finally

In August 2009, I opened a new file for a young lady who had been charged with a DUI. Little did I know it would take nearly 3 1/2 years to close that file.

I was able to get my client enrolled in a deferred prosecution program that would ultimately result in a dismissal of the DUI case. Little did I know that she was addicted to pain pills and was taking methadone to beat the addiction.

Things quickly went bad. She picked up a second DUI and failed to comply with the terms of her program. A warrant was issued and she ultimately pled guilty to the DUI that I was handling in late 2010. As part of her plea, she was still required to complete a DUI program and complete 10 months of monitoring.

Unfortunately, she relapsed and her addiction to pain pills began to spiral out of control. My client was lucky. She has a loving family and the support of good friends. During 2011 and 2012, she was in and out of drug treatment facilities in Alabama and Florida. She didn’t have a lot of money but she scraped together what was needed.

She has now been clean and sober for over a year. She continues to follow through with meetings and counseling. Her life is drastically different thanks to the support that she received from her family and friends. This is not uncommon but is the exception rather than the rule.

Last night I was able to get the court to terminate her probation and close her file. She was fortunate. The system worked for her. I was proud to give her a hug and send her on to begin the next chapter of her life.

Being Fired Never Felt So Good

I got fired yesterday. You might think that I was upset or disappointed. Honestly, it was the best feeling in the world.

In May of 2012 I was appointed to represent a defendant in federal court charged with Aggravated Identity Theft, Possession of Counterfeit Access Devices (read credit cards), Possession of Access Device Making Equipment, and three counts of aiding and abetting. My appointment resulted following the withdrawal of his first attorney. It was apparent from the first moment I met the defendant that he was going to be difficult to represent. He made it very clear that he was smarter than me, that he knew the law better than me, and that he was going to be in complete control of how his case proceeded.

The defendant was in custody when I was appointed. Within 2 weeks, I was able to convince a Magistrate Judge to release him on bond pending the trial of his case. At this point, he was very happy with my services.

Despite giving a 1 1/2 hour Mirandized custodial interview (read confession) admitting to almost every element of the charges against him, he insisted that he was not guilty and wanted a trial. He demanded that I file a motion to suppress evidence obtained in a Georgia traffic stop 1 month before his arrest, despite video evidence that he consented to the search. I did not file that motion. I did, however, file a Motion in Limine and was able to exclude large portions of the video taped confession from being played during the trial. He was not happy with my services.

After 4 days of trial, the Judge threw out half of the counts on a Motion for Judgment of Acquittal. The jury returned a guilty verdict as to the remaining counts. Now he was really unhappy because apparently his conviction was my fault and had nothing to do with his confession and the significant evidence pointing to his guilt. It was at this point that he started using the term Ineffective Assistance of Counsel.

Following trial, he requested and I filed a Motion to Modify the Conditions of his Bond so he could work. He failed to show up for the hearing and a warrant was issued. He was ultimately arrested and placed into one of our local county jails pending sentencing. This again was my fault.

The defendant was scheduled for sentencing yesterday. He filed a Pro Se motion for appointment of counsel a week ago citing irreconcilable difference. We had a hearing at 8:30 on his motion. He clammed up and told the Magistrate Judge that he wanted to move forward with me as his attorney. When his sentencing hearing began later in the morning, he told the Judge I had not provided him documents necessary for the sentencing. The Judge stopped the proceedings and told me to meet with him to go over the documents that I had mailed to him 3 weeks earlier.

When I got down to the U.S. Marshall’s lockup to meet with him, he again started talking about ineffective assistance of counsel. It was at this moment that he fired me. To say that this was the most difficult client would be an understatement. Others have claimed that I provided ineffective assistance in my representation, but no court has ever agreed with them. Disgruntled defendants are an occupational hazard when you practice criminal defense.

Following a hearing at 3:30 in the afternoon, I was finally relieved of my representation of the defendant. The Public Defender’s Office was appointed to represent him and I was free. After putting in well over 100 hours during the defense of his case, I was finally free to close his file for the final time.

Being fired never felt so good.

MIchael P. Hanle
Law Office of Michael P. Hanle