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Why the wrong lawyer could cost you your life

Published On: Oct 30 2013 10:19:43 AM CDT
Prison inmate holding bars

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By R. Wayne Richter, Esq., Special to THELAW.TV

A Connecticut judge last week ordered a new trial for Michael Skakel, the nephew of Robert and Ethel Kennedy. Skakel was convicted in 2002 of the murder of his 15-year-old neighbor, Martha Moxley. The reason? The judge, in his written opinion, stated that Michael Skakel had a "constitutionally deficient" defense. In other words, the judge found Skakel's trial lawyer to be inadequate.

The Sixth Amendment to the U.S. Constitution guarantees the right to the assistance of a lawyer in all criminal prosecutions. The U.S. Supreme Court has interpreted that amendment to include the right to an effective lawyer. Skakel's current lawyers argued that his trial lawyer, Mickey Sherman, was inadequate, among other reasons, by failing to explore an alibi defense, failing to effectively cross examine witnesses against Skakel, and by presenting an ineffective closing argument devoid of the term reasonable doubt, the degree of proof required in criminal cases.

The cost of an ineffective lawyer is not simply measured in attorney's fees, although an article in The New York Times reports that Sherman billed Skakel more than $1.2 million in attorney's fees. Perhaps, more costly to Skakel was the more than 10 years he spent in prison for a conviction that may have been the result of his inadequate defense. That is a decade apart from friends and family and the associated life events of birthdays, graduations, and the like. It is the loss of your name and reputation. It is the loss of your freedom.

Hiring a criminal defense lawyer

One of the most important decisions when facing criminal charges is deciding which lawyer to hire. Just like any other profession, not all lawyers are created equal. The hiring of a criminal defense lawyer, believe it or not, is an investment in your future and should be treated the same way you would approach any other investment.

Do your homework and ask these questions:

  1. Does the lawyer concentrate his or her practice in one area of the law, or are they jacks of all trades? Generally, when a lawyer passes the bar examination, he or she is licensed to practice law in any area they choose. Many lawyers dabble, for financial reasons, in multiple areas of law, such as family law, personal injury, criminal defense, etc. Stay clear of this type of lawyer. The law is ever changing. It is virtually impossible for any one lawyer to stay current on the law in multiple disciplines. Find an attorney whose practice is exclusively dedicated to criminal defense. This lawyer is more likely to know the area of criminal law better and they are more likely to be aware of recent changes in the law and potential defenses that you might have. Likewise, a lawyer whose practice is dedicated solely to criminal defense is likely to have formed relationships with prosecutors and judges, which may be an advantage in your case. Hiring a lawyer who does not exclusively practice criminal defense may be the first sign of a potential inadequate defense.
  2. What experience does the lawyer have in criminal defense? Many people often ask how long a lawyer has been practicing law. However, the question that should really be asked is: "How much experience in criminal defense does the lawyer have?" Preferably, you want to hire a lawyer who has been practicing criminal defense for several years and one who has significant experience at trial. Not every defense lawyer enjoys going to trial and prosecutors know this. Prosecutors know which lawyers are likely to persuade their clients into a plea versus proceed to trial and there is no incentive for the prosecutor to offer a great deal in these instances. Conversely, lawyers who do not mind going to trial often receive better plea offers for their clients. Lawyers who often urge their clients into a plea, or lawyers who do not try many cases, may not be as skilled and comfortable at trial, and the possibility for an ineffective or inadequate defense presents itself.

You can't avoid the high cost of an inadequate defense without discussing the cost of a good defense. Lawyers' fees are not uniform. Lawyers' fees in the area of criminal defense are often set by the years of experience a lawyer has, the complexity of your case, your prior criminal history, the amount of hours a lawyer anticipates working on your case, as well as other factors. But the Latin phrase caveat emptor, or buyer beware, comes to mind when hiring a criminal defense attorney. I know price is an important factor, but remember, hiring a criminal defense attorney is an investment in your freedom and future. Do not simply hire the least expensive attorney under the mistaken impression that all lawyers are the same. Ask whether the lawyer's fees are in writing. Avoid hiring a lawyer based on an oral agreement. A lawyer's fee might seem high, but the cost of an inadequate defense is much higher.

Signs you might have an inadequate or ineffective attorney:

  1. You have no communication with your lawyer after paying their fee. A competent, effective lawyer should welcome good communication with their client. A lawyer who either doesn't take or return your phone call can be a sign they are disinterested in your case. Unreturned phone calls are the biggest bar complaint against lawyers. At the same time, be reasonable with your calls. Lawyers are often under time constraints and deadlines and may be working on another important matter.
  2. Your lawyer repeatedly has another attorney appear on his or her behalf in court. If a lawyer routinely does not appear in-person at your court hearings, it is hard for that attorney to have a "feel" for your case. This is a potential indicator of an inadequate attorney.
  3. Your lawyer often seems unable to answer questions about your case. Your lawyer should be able to advise you of the strategy he or she is pursuing in your defense. If a lawyer doesn't seem to know the facts of your case, this is an indicator that your lawyer might be inadequate.

Lastly, trust your gut. More often than not, you can sense whether your lawyer is doing a good job. You should feel comfortable with your attorney. If feel your lawyer might be inadequate, get a second opinion. Consult with another lawyer before the cost of your defense becomes too high of a price to pay.

The author, R. Wayne Richter, is an attorney in West Palm Beach, Fla., with more than a decade of experience exclusively in the area of criminal defense.

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