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.

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.