Don’t Rock the Boat…

I’ve heard many attorneys say, “Don’t rock the boat…”

Why?

If you aren’t rocking the boat, you are losing cases you should have won. Are there cases where it’s in your client’s best interests to keep a low profile and not fight their charges? Sure – but, they are few and far between.

Different attorneys have different philosophies that govern how they approach the practice of law – I’m not saying anyone else is wrong. But, if you are a criminal defense attorney, and your philosophy is, “Don’t rock the boat or I won’t get good deals,” I’ll have to agree to disagree.

Criminal defense attorneys win cases by rocking the boat. Sometimes a little shake will do it. Other times, you’ve got to jump up and down and threaten to capsize the boat. Sometimes, you have to sink the boat.

Philosophies as to the Practice of Law

Everyone wants a criminal defense lawyer who wins their cases. Most people look for a criminal defense lawyer with a track record of fighting for their clients.

They might be out there, but I’ve never had a client come into my office and say, “Can you please plead me guilty without fighting? I don’t want to rock the boat.”

Don’t get me wrong – the client is driving the bus when it comes to pleading guilty or going to trial. But, if your attorney goes to the prosecutor and says, “my client wants to plead guilty,” before your attorney has, at a minimum, done an independent investigation of the facts and witnesses and researched all relevant case law, that would be malpractice in my opinion (and the Supreme Court has found that a failure to do an independent investigation is ineffective assistance of counsel).

I Can’t Make the Police Mad or I Won’t Get Good Deals

I cringe when I hear attorneys say, I can’t criticize the police chief (or insist on a preliminary hearing or argue with a prosecutor) because I won’t get good deals in my cases.

You don’t get “good deals” by rolling over and demonstrating that you won’t fight for your clients.

It’s a bullshit excuse for being lazy and not doing the work that you’ve been paid for. If you’re not a fighter, or if controversy makes you uncomfortable, criminal defense might not be the right field of practice for you – I hear that there is a demand for real estate lawyers as well as estate planners…

You “get good deals,” and you get more clients’ cases dismissed, when the prosecutors know that you are going to make their lives hell if they don’t give you what you want. Sounds harsh? It’s a criminal defense lawyer’s job.

If the prosecutor knows that I will plead every case and avoid trials, they will not make any concessions for my clients.

On the other hand, if the prosecutor knows that I will not only take a case to trial, but that I will investigate my case, explore every possible pretrial motion, make it a hard-fought trial, and appeal any adverse decisions, the prosecutor is more likely to agree to a fair and reasonable plea offer (or dismiss) before a trial happens.

Trial Chicken

What do I mean?

Any time a prosecutor makes a plea offer that my client cannot accept, “trial chicken” begins. If the prosecutor knows, by reputation, that I will swerve at the last minute, they are not going to swerve. They will bluff right up until the moment they can’t turn back, and we are pulling a jury.

On the other hand, if the prosecutor knows, by reputation, that I am not bluffing and that we are going to trial, they are more likely to take a closer look at their case and see if it can be resolved.

The side who wants to crash will win every time at chicken. Or, in other words, the side that is not playing chicken will win every time at chicken…

Death by a Thousand Cuts – Or, Just Keep Swinging

So, I just threaten a trial in every case, try every case that comes up on the roster, and my clients will get better deals, is that how it works?

No – you’ve got to challenge the charges at every stage of the case, do the work, investigate, negotiate dismissals or an acceptable plea offer, prepare for trial, try each case that can’t be worked out, and appeal any verdict or judgment that can be appealed.

And, you’ve got to be professional and courteous to the prosecutor, whenever possible, and work to resolve the case without a trial if it is possible. Fighting for your clients does not mean be an a**hole to the prosecutors. It does mean give them hell and make them work for every inch they get.

Pre-Arrest Cases

If you come to me before you are arrested – as soon as you discover that you are under investigation – our goal is to prevent the arrest. No arrest, no charges, no prosecutor, no trial.

We can avoid arrest for some clients. For others, we can avoid the pre-arrest interview, limit the amount of evidence that police can collect (no “confession,” for example), and make arrangements for and be present at your bond hearing.

Independent Investigation

An attorney’s failure to do an independent investigation of the facts of your case is ineffective assistance of counsel and, if there is also prejudice that results from the ineffective assistance, it is grounds for post-conviction relief (PCR).

You cannot rely on an officer’s version of events or statements in the officer’s incident report. Your attorney or their investigator needs to interview witnesses, visit crime scenes, and work hard to turn up favorable evidence, or at least evidence that may impeach the state’s witnesses.

Spotting and Researching Legal Issues

Your attorney must be able to identify legal issues in your case that could result in dismissal or suppression of key evidence, and then take the time to research those issues and brief them for the court.

For example:

  • Fourth Amendment violations that could result in suppression of evidence;
  • Miranda violations;
  • Voluntariness of statements or consents to search; and
  • Issues that are specific to your charges (DUI law, for example, is full of potential issues that the attorney must identify and research before trial).

Negotiations

Do we investigate your case, research the law, prepare for trial, and then clamor for a trial until we get one?

No.

We do the work and get ready for trial, but we talk to your prosecutor and make sure that they know what we want – dismissal, PTI, probation, five-year cap, whatever it is.

We will probably save some surprises for a possible trial, but we also let the prosecutor know why they should accept our offer – a good prosecutor will also recognize suppression issues and potential weaknesses in their case.

We don’t tell your prosecutor, “Give us a trial.” Not usually, anyway. It’s better to say, “Give us a dismissal.” If we can win your case without a trial…

Trial

Before the trial starts, we will argue any pretrial motions – to suppress key evidence, to suppress statements, to limit the evidence, or to dismiss your case.

During trial, we must be prepared to object and argue relevant case law – trial preparation includes anticipating and preparing for objections. We must be prepared to impeach the state’s witnesses through cross examination, prior statements, and with our witnesses when appropriate.

We argue a directed verdict motion at the halfway point, when appropriate. We litigate every issue in your case that could give you even the slightest edge – including jury instructions, lesser included offenses, and order of closing arguments.

After Trial

If all goes well, a jury of 12 citizens will acquit you and you walk out the front door.

If that does not happen, we must be prepared to argue for the best possible sentence – a fine, probation, or the least amount of prison time, depending on your case.

If you are convicted, there may be grounds for post-trial motions for a new trial based on new evidence or other grounds. There may be grounds for a direct appeal to the Court of Appeals or SC Supreme Court. If not, there may be grounds for post-conviction relief (a new attorney would have to handle the PCR allegations).

Don’t Rock the Boat

What part of all the above is “rocking the boat?” If an attorney tells you they don’t want to “rock the boat,” you should try to pin them down on what exactly they mean by “rocking the boat…”

Does that mean they don’t think they should prepare your case for trial? They don’t think they should investigate or talk to the witnesses? They think they should waive hearings or other important rights on your behalf? They don’t think they should demand a fair outcome?

If your life is on the line, do you think your attorney should be willing to “rock the boat?” If your freedom is at stake, maybe your attorney should be willing to sink the boat if necessary…

Criminal Defense Lawyer in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts.

If you have been charged with a crime or believe that you are under investigation in the Charleston, Georgetown, or Myrtle Beach areas of SC, call now at (843) 808-2100 or send an email to schedule a free consultation.


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