By Chuck Lanehart and Fred Stangl, Attorneys at Law
Like choosing a surgeon, choosing an attorney is a very important decision. Friends or relatives may be able to refer you to a good attorney, and you may wish to visit with several attorneys before making your choice. Keep in mind that criminal law is a special field of law, and an attorney who specializes in this particular field will probably be your best choice. A lawyer who is “board certified in criminal law” means he or she has received special certification by the State Bar of Texas – Texas Board of Legal Specialization regarding the practice of criminal law. This certification is earned by acquiring additional education and training in the specific area of criminal law.
Any doctor, stockbroker, or school teacher who guarantees positive results is not being completely honest with you. Professionals, including attorneys, develop reputations for producing positive results, but sometimes other factors result in negative outcomes. Positive results cannot be guaranteed. Hiring a lawyer is quite different from buying a used car. Your attorney simply cannot honestly guarantee the result of your case.
You and your attorney should reduce to writing your agreement concerning the services to be rendered and the cost of those services. Many criminal cases are handled on a “lump sum” fee basis, but you may wish to agree on a per-hour or per-day fee schedule. One typical agreement is a certain lump-sum fee if the case is resolved without a trial, plus a certain lump-sum fee (or minimum fee per day) for a trial. In addition to your attorney’s fee, there are many expenses associated with a criminal case, and your attorney should be able to estimate those expenses. Some criminal cases are inadequately funded, which can result in negative outcomes. Make sure your case is adequately funded.
Your attorney shall not disclose to any other person any confidential communication between you and your attorney. This legal requirement is designed to foster honesty and trust between lawyer and client. Your attorney will be able to act in your best interests only if he or she knows the entire truth about you and your case. Knowing the entire truth does not mean that your attorney must divulge the entire truth, however, unless it is with your consent and in your best interest. Many people may want to know about you and your case, including the prosecution, the media, your employer and your family. Your attorney will not answer any questions about you or your case unless you authorize it first. Therefore, do not expect your attorney to return telephone calls to reporters, bosses, distant cousins or even spouses unless you authorize the communication first. Your attorney is ethically-bound to communicate with you, but sometimes he will not be available because of conflicting obligations. In those instances, your attorney will designate his secretary, legal assistant or another person in his office to attempt to help you. If that person cannot help, your attorney will return your call in a timely fashion. If your call is not returned in a timely fashion, you should complain to the State Bar of Texas at 1-800-932-1900 and find another lawyer.
Your attorney will formally notify the Court and the prosecution of his representation, as well as your bail bondsman, if any. He will then informally request “discovery” from the prosecutor. Discovery is the evidence against you from the prosecution’s files. The prosecution is also ethically required to disclose any exculpatory or mitigating evidence. Someone from your attorney’s office will also interview any available witnesses and collect any documents or physical evidence which may aid your defense.
In most jurisdictions, the prosecutor usually provides discovery within a week or two after request. It is not unusual, however, for the prosecution to withhold certain items from the defense, such as witness statements and affidavits. After review of the prosecution’s discovery and other evidence obtained in the initial investigation, your attorney should be able to give you a preliminary opinion concerning the strength of the case against you, your possible defenses and suggestions concerning trial strategy. One important early decision is whether to seek a speedy trial, mount an immediate, pro-active, aggressive defense; or, to attempt to delay the case. Your attorney will explain the positives and negatives to each strategy, which depends on the nature of the case.
Although every criminal defendant is guaranteed the right to a speedy trial by the U.S. Constitution, a quick resolution in a criminal case may often favor the prosecution. Most cases take at least six to eight months to be completed. Some complex cases can take much longer to complete. Time considerations also may differ depending on the jurisdiction, judge and prosecutor involved. Your attorney can give you an estimate of the time your case will take to complete.
Each jurisdiction or county handles criminal procedures differently. Your case will travel through a series of steps, which may differ depending on the type of crime you are charged with and the court in which your case has been filed. The basic steps are as follows:
a. Arraignment is a defendant’s initial appearance before the judge. The judge reads the charge to the defendant, and the defendant enters a plea of Not Guilty. (Even if you feel you are guilty of the offense charged, you should enter a plea of Not Guilty at the time of arraignment. You may always change your plea after consulting with your attorney. A plea of Not Guilty can never be used against you in court proceedings.) If a defendant has hired an attorney, a written Waiver of Arraignment may be signed by both the attorney and defendant and filed with the court, and the defendant will not be required to attend the arraignment.
b. Plea Negotiation Conference is an informal court hearing at which the defendant’s attorney meets with the prosecutor in order to discuss the case. The defendant may also be required to appear. At this time, the attorney attempts to negotiate an agreeable resolution of the case. The result of the Plea Negotiation Conference is conveyed to the defendant orally or by letter. If an agreement is reached which involves a plea of guilty or nolo contendre (no contest), the case is then scheduled for a plea date. If the agreement involves a dismissal for payment of restitution or perhaps community service, the case will be postponed until the restitution is paid and/or community service is completed. If no agreement is reached, the case is scheduled for pretrial hearing and trial.
c. Pretrial Hearing is a formal court hearing before the judge during which the judge rules on various motions and makes sure all discovery has been provided to the defense. The defendant must appear in person at the pretrial hearing.
d. Trial is a formal court proceeding before a judge and jury or before the judge alone. The judge or jury determines the guilt of the defendant after presentation of evidence. If the defendant is found guilty, the judge or jury will assess punishment.
Perhaps 90 per cent of all criminal cases are resolved by “plea bargains.” A plea bargain is an agreement between the prosecution and the defense, approved by the judge, which resolves the case. Most plea bargains involve an agreement by the prosecution to recommend a certain punishment in exchange for the defendant’s agreement to plead guilty. Sometimes a plea bargain results in the dismissal of charges in exchange for restitution or community service. Your attorney is ethically bound to convey to you any plea bargain offered by the prosecution. Unless you instruct your attorney otherwise, he will pursue a fair plea agreement in your case. This does not mean your attorney thinks you are guilty if you are not: it is simply an attempt to convey all possible options.
Your attorney should be able to fashion a strategy to get the most from Texas criminal procedural rules, public relations tools and other resources in order to gain any advantage possible before trial, if trial becomes necessary. Many of these decisions involve complex legal issues, but others involve simple commonsense choices. Nevertheless, your attorney will consult with you about any decision which may substantially impact your case. Some decisions, such as whether a judge or jury will decide your fate, whether you will or will not testify in your own defense, and of course, whether you will plead guilty or not guilty, are decisions which can be made only by you. Other less important decisions involving your case may be made by your attorney without your input. If you have any questions about decision-making in your case, ask questions. Ask questions. Ask questions.
Although, statistically, few cases are actually decided at trial, your case must be prepared from the outset as if it is going to be resolved by jury trial. Otherwise, you and your attorney will run the risk of being unprepared should other resolutions fail. The unexpected often happens in a jury trial. Should your case go to trial, you can expect perhaps the most exciting — and stressful — experience of your life. Expect to work with your lawyer many hours in preparation for and during each day of trial.
If the result of your trial is not what you expected, you should consult with your attorney concerning an appeal or other post-trial remedies. Usually, your chances of relief after an unfavorable verdict are slim, but there are exceptions.