A Message to Criminal Defendants: Save Yourself From Yourself

Criminal Defendants

The Fifth Amendment provides criminal defendants with the right to remain silent.   Miranda warns that anything a defendant says may be used against him in a subsequent criminal prosecution.  This includes incriminating statements defendants made to anyone, including people they trust.  It also includes statements made when they think the government is not listening.  Nonverbal actions or conduct by a defendant, considered as statements, can also be used against him.  The true stories below are shared to warn to all criminal defendants on how to save themselves from themselves.

How my clients sabotaged their own cases

In 2019, I had 15 jury trials.  I lost two of these cases because of the actions of my clients, not because of overwhelming evidence presented by the prosecution or any failure on my part.  Even the best lawyers cannot always rebound from and repair the damage inflicted by their own clients.  As you read below, you will quickly understand what I am talking about.   As a I address each case, I deliberately omitted names to protect the clients’ privacy.

The first case

The first case involved a defendant charged in a multi-count indictment alleging a heroin trafficking conspiracy and multiple counts of possessing with intent to distribute heroin in U.S. District Court.  Based on the charges, the client faced a mandatory minimum sentence of 10 years if convicted after trial and maximum potential sentence of life.   We developed a strong trial strategy that called for the client to plead guilty to multiple, possession with intent to deliver charges, which carried no mandatory jail.  The total admitted heroin weight was approximately 50 grams.   The battle at trial, however, involved disputing the conspiracy and alleged heroin quantity of one kilogram or more, which triggered the mandatory minimum jail sentence of 10 years.

The defense I developed maximized the chance for an acquittal.  We embraced all of the government’s evidence, except the testimony of a single informant.  This informant was my client’s best friend and someone who he allegedly was in the drug business with for many years.  Because of his cooperation with authorities, the informant avoided prosecution and sought to aid his sister, who was arrested and charged as a co-conspirator.  She was also a young mother with an infant child.  My cross-examination of this witness was made for television.  It was text book.  After it was over, I was complimented by the trial judge and both prosecutors who feared my examination could have led to an acquittal.   The only problem was my client.   When the informant entered the courtroom, the client stood up in court and in front of the jury, stared down the traitor and mumbled something aloud in Spanish, all the while clapping.  The jurors all noticed my client’s surprising actions.   After the jury found him guilty, the judge even commented on the man’s conduct as he sentenced him to a term of 15 years in federal prison.

The second case

The second case involved a defendant charged with first degree sexual assault in Superior Court.  My client was accused of this capital crime by his fiancé’s sister.   If convicted, he faced a possible sentence of life imprisonment.  He was offered a stiff jail sentence in exchange for a guilty plea, but declined.  This was a great case for trial: no eyewitnesses, no physical or forensic evidence, a delayed report, a story that made no common sense, an unsympathetic complainant with poor memory affected by intoxication, conflicting accounts of what happened, and a motive to fabricate.  The fact pattern was almost too good to be true, until my client destroyed his own defense. 

Trial started on a Monday with jury selection.  That day, during the lunch recess, the prosecutor invited me to her office to discuss some newly discovered evidence.   It consisted of a recorded jail phone call made by my client to his ex-fiancé the weekend before trial.  During the call, he pleaded with his fiancé to discourage her sister (the complaining witness) from appearing in court to testify against him.  He suggested offering the sister money, having her leave town and hiding out in a hotel, and even using his infant’s desire to have her father return home from jail to increase the pressure.  The ex-fiancé relayed the message, as asked, and her sister passed it along to the prosecution.  Despite my best efforts of objecting to the tape’s admissibility at trial, the judge allowed it into evidence.  The jury not only heard the recorded call, but had the assistance of a verbatim transcript to read along when it was played in open court.   The prosecutor repeatedly played portions of the call during her closing argument, and the entire recording went back with the jury during their deliberations.   The jury returned a guilty verdict against my client.

Obtaining success at trial, as a defense lawyer, is very challenging.  If overcoming juror bias, being outnumbered by police and prosecutors, limited resources and forensic evidence were not enough, lawyers now must worry about their clients’ words and actions.  

When your lawyer tells you not to discuss your case on the recorded jail phones, during recorded jail visits, or to anyone other than your lawyer, listen to him and follow his instructions.  At trial, after your lawyer dresses you up, ensures you are cleanly shaven with a fresh haircut, and tells you to sit quietly, professionally and with a poker face, listen to him and follow his instructions.  Failure to heed this simple advice could sabotage your case and destroy both your legal defense and your lawyer’s ability to win your case.

Important lesson

I experienced first-hand, twice in one year, how my clients sabotaged their own cases.   Despite all of my experience, daily hard work, and legal maneuvering, I could not repair the damage they had caused or self-inflicted.   I hope to never experience circumstances like this again, and I certainly do not wish for this to happen to any of my colleagues or their clients.  For the two defendants described above, this is a lesson learned too late.  If you are reading this article, hopefully you have learned this important lesson in time to save yourself, from yourself.