-
Practice Guides
11 Critical Questions to Ask When the Government Subpoenas a Mental Health Professional's Records
9/01/2023We all know it’s coming. That point in the first meeting when a potential client asks, “everything I tell you is confidential, right?” Sometimes they use the term “privileged.” Technically, they shouldn’t have to ask that question because we would have established the limitations of confidentiality before the meeting. But our interactions with prospective clients are not always so orderly. We sometimes make ourselves available under less-than-optimal circumstances. Most of us would rather field a frantic phone call than try to undo a poor decision retroactively. Even in the context of the attorney-client privilege, when and whether we have created an attorney-client relationship is not always clear. That’s a question for another day. Here we address 11 critical questions to ask when the federal government attempts to gather information or introduce evidence related to a person’s relationship with a mental health provider. 1. Do federal courts recognize an evidentiary privilege for a relationship between a psychotherapist and patient? Yes, assuming the psychotherapist is a licensed psychiatrist, psychologist, or social worker. The United States Supreme Court in the case of Jaffee v. Redmond, 518 U.S. 1 (1996) recognized the “psychotherapist-patient privilege.” The case involved a police officer who sought treatment for her emotional and mental problems after she shot and killed a man. Id. at 3. The Court considered “whether statements the officer made to her therapist during the counseling sessions are protected from compelled disclosure in a federal … action….” Id. Or “whether it is appropriate for federal courts to recognize a ‘psychotherapist privilege’ under Rule 501 of the Federal Rules of Evidence.” The Supreme Court accepted the case after the Seventh Circuit Court of Appeals concluded that a “psychotherapist-patient privilege” applied under the circumstances of the case. Id. at 1. The family of the man the police officer shot brought a federal civil rights action against the officer. During the discovery process, the plaintiff requested notes from the mental health professional's sessions with the officer. The officer refused to disclose the information, and the trial judge instructed the jury that it could draw a negative inference from her refusal. Id. The Seventh Circuit reversed the trial court’s refusal to recognize an evidentiary privilege for the officer’s sessions with her mental health professional, but created a balancing test to determine whether the psychotherapist privilege applies. Id. at 9. The Seventh Circuit’s standard would have required a trial court to balance the patient’s privacy interest against the public interest, or evidentiary need, to disclose the confidential communications. Id. The Supreme Court recognized the psychotherapist-patient privilege. It concluded that the psychotherapist-patient privilege is “rooted in the imperative need for confidence and trust,” just like the spousal and attorney client privileges already established in federal courts. Id. at 10 (quoting Trammel v. United States, 445 U.S. 40, 51 (1980). Considering the sensitive information disclosed and the importance of confidentiality, the Court rejected the Seventh Circuit’s balancing test out of concern that it would eviscerate the federal privilege. Id. at 18. At the same time, the Court noted that exceptions to and limitations on the psychotherapist-patient privilege would be considered based on the circumstances of each case. Id. The Jaffee case established a federal rule of evidence that excludes communications between a patient and licensed psychotherapists in criminal cases and civil cases in federal court. 2. Was the information disclosed during a patient’s relationship with a licensed psychiatrist, psychologist, or social worker? If yes, the privilege may protect the communications. To decide in Jaffee that a psychotherapist-patient privilege exists, the Court considered the rationale used by most states to justify a privilege for mental health treatment. Id. at 14. The rationale is that society benefits when people suffering from a mental condition or an emotional condition seek treatment from a qualified treatment provider. Id. at 13. Effective psychotherapy requires patients to trust that sensitive information disclosed during a confidential relationship is protected by a testimonial privilege. Id. Most states create privileges for mental and emotional health treatment by statutes that establish guidelines and limitations. The Court concluded that a “psychotherapist-patient” privilege outweighed the public interest “of utilizing all rational means for ascertaining truth….” Id. at 15 (quoting Trammel, 445 U.S. at 50). While the Jaffee court intentionally left most questions about limitations to the federal privilege unanswered, it clarified two issues. The Court confirmed that the testimonial privilege protected confidential communications between a licensed psychotherapist and a patient made during the course of diagnosis or treatment. Id. The Supreme Court agreed with the Seventh Circuit that the privilege applies to a therapeutic relationship between a licensed social worker and a patient seeking treatment for mental or emotional problems just as it would for a licensed psychiatrist or psychologist. Id. 3. Are we talking about confidential communications? The privilege protects confidential communications related to diagnosis and treatment. The Court decided in Jaffee that the privilege protects “confidential communications between a licensed psychotherapist and … patients in the course of diagnosis and treatment….” Id. The Court does not limit the communications to “verbal” communications, but we would be wise to read the language literally. We should expect information or documents that are not confidential, not between the psychotherapist and patient, and not for the purpose of diagnosis or treatment to fall outside the privilege. The United States Supreme Court’s analysis of the attorney-client privilege is instructive on this issue. That privilege can apply when a client transfers documents to his attorney “for the purpose of obtaining legal advice,” but only when the client is protected from disclosing the document under the privilege against self-incrimination. Fisher v United States, 425 U.S. 391 (1976). The attorney-client privilege would not apply to information within documents that would not be protected against disclosure if maintained by the client. Id. A similar analysis would apply to the psychotherapist-patient privilege. Documents that include testimonial information, or communications, that are confidential and created for the purpose of diagnosis or treatment should be protected. A whole range of information could fall outside the privilege, such as interviews with third parties, documents assembled during the relationship, or communications made outside the therapeutic relationship. 4. What if the counselor was not a licensed psychiatrist, psychologist, or social worker? The privilege may not apply. The testimonial privilege applies to confidential communications for diagnosis or treatment between a patient and licensed psychiatrists, psychologists, and social workers. It is unclear whether the privilege will apply to a therapeutic relationship between a patient and other mental health providers, such as an addiction specialist, family therapists, or licensed counselor. The Court’s rationale in Jaffee should provide a basis for arguments in these situations. The Court pointed to data that “social workers provide a significant amount of mental health treatment.” They treat a disproportionate number of poor or lower income people but “serve the same public goals.” Id. at 16. The Court noted that most states “extend a testimonial privilege to licensed social workers.” Logically, district and circuit courts should apply the same analysis when considering whether the psychotherapist-patient privilege extends to other licensed therapists. 5. Are substance abuse treatment records treated differently? The short answer is yes (for purposes of disclosure). The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, Drug Abuse Office and Treatment Act of 1972, and related federal regulations prohibit disclosure of alcohol and drug treatment records unless the patient waives the right of confidentiality or a court orders disclosure of the records. See, 42 U.S.C. §290dd-3 42 CFR Part 2. Before issuing an order disclosing the patient’s information, the court must ensure that the patient consented in writing (42 C.F.R. §2.31) or has notice and the opportunity to appear in person to respond to the requested disclosure. (42 C.F.R. §2.64). To gain access to information related to a patient’s alcohol or drug treatment, the applicant must show good cause, which requires the court to “weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services.” 42 C.F.R. §290dd-2(b)(2)(c). If the court discloses any treatment information, it must “impose appropriate safeguards against unauthorized disclosure.” Id. These statutes and regulations are confidentiality provisions, not testimonial privileges. Obviously, they work to protect patient information. A testimonial privilege acts as a bar to using the information after it's disclosed. The substance abuse regulations offer broader protection from disclosure, including “records of the identity, diagnosis, prognosis, or treatment.” 42 C.F.R. §290dd-2. A patient treated for drug addiction has a right to notice and a hearing before a court can provide the information to the applicant. Id. The protections are not limited to licensed psychologists or social workers, instead they cover “any program or activity relating to substance use disorder education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States….” 42 USCS § 290dd-2. At the same time, the regulation creates a “good cause” standard that requires the court to weigh the patient’s interest against the need for disclosure. The Jaffee Court expressly rejected such a standard, concluding that it would “eviscerate the effectiveness of the privilege.” Jaffee, 518 U.S. at 17. When substance abuse treatment records are the issue, the inquiry should not end with the statute and regulations. If a court balances the competing interests in favor of disclosure, the psychotherapist-patient privilege could apply. Nothing about the governing statutes and regulations or the caselaw undermines the testimonial privilege under those circumstances. The analysis would simply move from a statutory and regulatory analysis to the standard established by Jaffee and subsequent caselaw. 6. Who asserts the privilege? The provider may assert the privilege under certain circumstances. The patient can always assert the privilege. The patient holds the privilege and only the patient can waive the privilege. Jaffee, 518 U.S. at 15 n. 14. In certain instances, the patient may not be aware of an application to disclose information from their treatment history, including applications related to third party litigation or grand jury proceedings. Under those circumstances, the psychotherapist can, and should, assert the privilege. Courts have recognized the psychotherapist’s authority to assert the privilege on the patient’s behalf. See Richardson v. Sexual Assault/Spouse Abuse Res. Ctr., Inc., 764 F.Supp. 2d 736, 741 (D. Md. 2011). Given the Jaffee Court’s assurance that only the patient can waive the privilege, a psychotherapist’s inadvertent or intentional disclosure of the patient’s treatment information should not constitute a waiver absent some other exception. Jaffee, 518 U.S. at 15 n. 14. 7. Who bears the burden of establishing that the privilege applies? The person invoking the privilege. Unlike the presumption of confidentiality created by the statutory and regulatory authority governing substance abuse treatment records, “the person invoking the privilege [must] demonstrate its applicability, including the absence of any waiver of it.” United States v. Bolander, 722 F.3d 199, 222 (2013). Testimonial privileges are strictly construed, and the psychotherapist-patient privilege is no different. Id. The party asserting the privilege “must set forth facts sufficient to establish all the elements of the claimed privilege.” In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71,73 (1st Cir. 1999). That means the person asserting the privilege must show that they are seeking to protect confidential communications between a patient and psychotherapist during the course of diagnosis or treatment. Id. The obligation applies to the separate pieces of information. Some information sought by the applicant may fall outside the privilege. Lodging an objection to large swaths of documents will not work. The proponent of the privilege will have to object to specific items and document those objections with a privilege log. 8. Are there exceptions to the psychotherapist-patient privilege? Yes. Courts have recognized a number of exceptions that may apply depending on the circumstances of a case. Common arguments against the testimonial privilege include waiver and the crime-fraud exception. Keep in mind that the psychotherapist-patient privilege protects against the compelled disclosure of confidential communications between the psychotherapist and patient for the purpose of diagnosis or treatment. Like any privilege, “the psychotherapist-patient privilege may be waived by knowingly and voluntarily relinquishing it.” United States v. Lara, 850 F.3d 686, 690 (4th Cir. 2017). The party asserting the privilege must show that it applies, including that the patient has not waived the privilege. United States v. Bolander, 722 F.3d 199, 222 (4th Cir. 2013) While many of us think of a signed release after express warnings when confronted with the idea of waiving a confidence, the courts interpret the waiver of testimonial privileges more broadly. Information privately revealed to a designated third-party may constitute a waiver of the privilege in general. United States v. Rockwell Int’l, 897 F.2d 1255, 1265 (3rd Cir. 1990). In the context of the attorney-client privilege, the Fourth Circuit Court of Appeals has concluded that information communicated to an attorney “with the understanding that the information will be revealed to others…” is not privileged. In re Martin Marietta Corp., 856 F.2d 619, 622 (4th Cir. 1988). Simply knowing that their communications may be revealed to a third-party undermines the expectation of privacy and waives the privilege in some cases, even if the communications were required by court order. Barrett v. Vojtas, 182 F.R.D. 177, 181 (W.D. Pa 1998). In the context of the psychotherapist-patient privilege, group therapy could be a waiver. Another common argument against the privilege is that the crime-fraud exception applies to the communications. Communications made to further fraud or other crimes are not protected. Protecting such communications is outweighed by the “predominant principle of utilizing all rational means for ascertaining truth.” Violette, 183 F.3d at 77. 9. Does the privilege apply to a grand jury proceeding? Yes. Grand juries operate differently than courts. A district court has limited authority over grand jury proceedings. In re Grand Jury Proc., 616 F.3d 1186, 1202 (10th Cir. 2010). “Although the grand jury normally operates . . . in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length.” United States v. Williams, 504 U.S. 36, 47 (1992). While courts deal with cases and controversies, a grand jury can investigate on mere suspicion of or to rule out violations of the law. United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991). And, the grand jury operates in secret. United States v. Sells Eng’g, Inc., 463 U.S. 418, 424 (1983). Despite a court’s limited authority, “the grand jury’s investigatory powers are not unlimited….” In re Grand Jury Subpoena, 646 F.3d 159, 164 (4th Cir. 2011). A court must intervene “when a recognized privilege provides a legitimate ground for refusing to comply with a grand jury subpoena.” In re Grand Jury Proc. #5 Empanelled Jan. 28, 2004, 401 F.3d 247, 250 (4th Cir. 2005). Thus, the psychotherapist-patient privilege applies to grand jury proceedings. 10. Does the patient have a right to notice in a grand jury proceeding? Probably not. Unlike the provisions that govern the confidentiality of substance abuse treatment records, it is unlikely that patients have a right to notice of a grand jury subpoena delivered to the treatment provider. I will offer the following three reasons for that conclusion: The psychotherapist-patient privilege is recognized through common law, not statutorily created. I am unaware of any case mandating notice to the patient. Although the patient holds the privilege, the psychotherapist can assert the privilege on the patient’s behalf, maintaining the patient’s right to protect the confidential communications. Courts place a high premium on the secrecy of grand jury proceedings. The United States Supreme Court has concluded that “the proper functioning of [the] grand jury system depends upon the secrecy of grand jury proceedings.” Sells Eng’g Inc., 463 U.S. at 424. Secrecy usually outweighs an individual’s interest in obtaining grand jury information. In Grand Jury Proc., Thursday Speical Grand Jury Sept. Term, 1991, 33 F3d 342, 351-53 (4th Cir. 1994). 11. What happens to the privilege when a psychotherapist reports a patient’s threats? The psychotherapist-patient privilege may act as a bar to additional disclosure and testimony. As a general rule, the existence of a psychotherapist-patient privilege does not disappear every time a psychiatrist or clinical social worker has to disclose confidential information to protect a third party. Psychotherapists are obligated to protect the confidences of their patients. This code of confidentiality promotes trust and encourages open dialog. Effective psychotherapy for a person suffering from an emotional problem or mental health crisis requires the psychotherapist to obtain sensitive information from the patient. A patient’s sense that their confidences are insecure will have a chilling effect on their relationship with the psychotherapist. It is common for state legislatures to create a statutory privilege for these relationships. For example, psychotherapists in North Carolina are not required to disclose any information obtained during the therapeutic relationship unless a judge determines that disclosure is necessary for the proper administration of justice. The statute includes exceptions for reporting suspected child abuse, admitting evidence related to child abuse, and testimony regarding the abuse or exploitation of disabled adults. N.C. Gen. Stat. §8-53.3. In addition, most states impose a duty on the psychotherapist to report a patient’s threats of violence. This obligation is sometimes referred to as the “dangerous patient exception.” That does not mean that threats of violence are automatically admissible as evidence in federal court. U.S. v Hayes, 227 F.3d 578 (6th Cir. 2000). Remember, allowing a judge to consider whether disclosing the information is necessary for the proper administration of justice is the type of “weighing” analysis that Jaffee expressly prohibits. 518 U.S. at 18. The psychotherapist’s duty to protect a foreseeable victim from danger is different from creating an exception to an evidentiary privilege. Hayes, 227 F.3d at 585. Courts have not categorically adopted a “dangerous patient” exception to the psychotherapist-patient privilege. Id. A psychotherapist can honor their professional obligations to disclose a serious threat of harm against someone without creating a duty to testify in a criminal or civil proceeding in federal court. Id. at 586.
-
Newsletter
Is Cruelty the Only Option?
5/09/2023Jimmy is a short, stout man. He has a huge smile surrounded by full cheeks. The tone of Jimmy’s voice matches that of other adults his age, but his speech is garbled. It is as if something interferes with the words as they make their way from his mouth to our ears. His message is sometimes unclear, but always offered with enthusiasm and affection. For the last eight decades, Jimmy has disrupted the masculine sensibilities of his coastal community with big embraces of women and men alike. The story is that Jimmy suffers from a developmental disability (although no one used that term until recently), caused by some serious illness as an infant. He did not mature physically or mentally with his peers. Jimmy’s family and the rest of the small coastal community surrounded him with love, support, and fierce loyalty. Before his retirement, Jimmy was a hard worker, but his developmental problems limited his options. In the ‘60s and ’70s, he worked mostly as a farm hand or laborer. He responded with energy and enthusiasm. Jimmy approached simple, mundane tasks with fascination. What others saw as drudgery, Jimmy saw as opportunity. ; My parents lived in the same community as Jimmy. My parents had married at a Baptist church near my mother’s childhood home. After a small reception in the church fellowship hall, they returned to my grandparents’ home to gather their suitcases (stored in separate bedrooms) before leaving for their honeymoon. ; In telling the story of what followed, my father implied that he was in a bit of a hurry. He entered the house to pull together a few items for the trip, when my maternal grandfather approached. My grandfather was not always talkative but tended to proceed at length and wander far once he started. He followed my father throughout the house offering marital advice and tips for a successful relationship with my mother. ; Anxious to get away, my father remembered only one of my grandfather’s statements: ;“She’s high strung now!” I was with my mother one of the first times I saw Jimmy. I had not started school yet. He was working for a farmer near our home. A couple of teenagers were with him when he greeted my mother with a huge smile and said something I could not understand. ; Before my mother could respond, the boys mocked Jimmy’s speech. It was one of the few times I ever saw his smile disappear. Unfortunately, those boys had not heard my grandfather’s warning. My mother’s response was swift, fierce, and focused. She educated with a verbal assault that was harsh but packed a simple message. ; ; ; Jimmy’s differences are not his choice. ; ; ; ; He’s reminded every day of his differences. ; ; ; Cruelty is beneath you. I have thought of that short encounter often over the last few weeks. Small coastal communities are rife with hypocrisy, just like any other community. The love and support showered on Jimmy is inconsistent with that same community’s history as “a sundown town.” ; But we cannot argue with the results of its support for Jimmy. Instead of treating him as a burden or marginalizing him, the community rallied to support him and his family. He contributed with his labor, redistributed his earnings, and spread joy along the way. ; Whatever the views or whomever the messenger, considering, embracing, or celebrating differences seems out of fashion. So often we leverage available power to avenge our grievances through cruelty. ; Those with political power legislate or threaten legislation to rouse our worst instincts. ; Those with a social media platform attack real or imagined enemies. ; We shout speakers offstage with angry rhetoric to quiet what we interpret as angry rhetoric. ; Creating culture wars for the sake of political advancement may be a successful strategy but comes at great cost to those who live within the divided communities. Civil liberties, including freedom of speech, privacy and civil rights, evolved and flourished through open debate. So often our tactics undermine the interests of those they are designed to serve. Politicians in Iowa propose legislation aimed at small, marginalized groups of people while lamenting the exodus of young people from the state, especially the small, rural communities in the state. Maybe their views are principled, but a cost-benefit analysis exposes their substantial expense to the community. ; It is not my business to cancel the culture wars, bridge political divides, or impose standards of discourse for the extremes. ; But I have talked to hundreds, if not thousands, of prospective jurors throughout the state during the last four decades. People from all walks of life. I have accepted laborers, chief executive officers, schoolteachers, college students, law enforcement officers, ministers, young, old, healthy, disabled, and illiterate. ; When forced to question and respond in a respectful, dignified manner, we learn so often that we are less different than we might imagine. We are often willing to overlook our differences when confronted with the reality of our decisions on the lives of those among us who are different. ; And that we can differ without cruelty if we are half a mind to try. The investment may pay us back exponentially. P.S. ; Jimmy’s last job was running an auto repair shop with his brother’s help. Of course, Jimmy isn’t his real name.
-
Practice Guides
Five Priorities When Your Client Is a Target of a Government Investigation
2/16/2023Practicing these top five priorities when your client is a target of a government investigation will position your client for a stronger defense and may just help you avoid an indictment.
-
Newsletter
A fool for a lawyer
12/29/2022My first court appearance representing someone was in Jones County, North Carolina nearly thirty years ago. My friend got a speeding ticket on his way to the beach. Because of the complexities of the way insurance companies and the North Carolina Department of Motor Vehicles address traffic offenses in North Carolina, lawyers routinely represent people in court for speeding violations. My friend was speeding about twenty miles over the speed limit. He had no offenses within the preceding three years. I appeared in Jones County that morning. A friend took me to a room behind the courtroom where I encountered a short, stocky man smoking a big cigar. He nodded when my friend introduced me as a new lawyer and identified him as the presiding judge. I negotiated a disposition with the prosecutor where he entered a plea to speeding sixty-four miles per hour in a fifty-five mile per hour zone. When the prosecutor called the case, I stood and through my nerves entered a plea of responsible to the infraction. That disposition prevented the insurance company from raising my friend’s insurance rates.In exchange, I got a box with several high-quality cigars. The next time my friend and I were together, we each smoked a cigar and toasted a favorable outcome in my first court appearance. A few months later, my friend got another ticket in a county far from where I practiced. This time, he had to hire a lawyer or appear for himself. Aware of the outcome in the recent case, he decided to represent himself. My friend made this decision without consulting me first. My friend’s strategy was to ask the prosecutor for a reduction to speeding nine miles over the speed limit, just like I had done for him in Jones County. He would save the legal fee and prevent his insurance rates from increasing. Unfortunately, my friend’s understanding of the law was flawed. As I later explained to him, speeding nine miles over the speed limit when you have no prior moving violations within the immediate three-year period does not affect your insurance rates in most cases. His problem was that we had entered a plea to a moving violation to resolve his prior speeding ticket, which was only a few months earlier. The reduction to speeding nine miles over the limit for the second offense did not come with the same protections. His insurance company could, and did, raise his rates. The rate increase continued for three years, costing him thousands of dollars that he would have saved by hiring a lawyer. Certainly, people appear in courts every day to negotiate their own traffic tickets. Some do so successfully. That is their right. For some people, it is their best option. At the same time, it hardly seems worth the risk for most people who can afford to hire a lawyer to resolve the charge. The fees are manageable for most people. The transaction is more convenient because most cases can be resolved if the driver authorizes the lawyer to appear in the driver’s absence. Most importantly, the lawyer should understand the consequences of the negotiations before entering the plea. Even when the result is not the driver’s favored disposition, the driver should have an accurate accounting of how the plea impacts the driver’s privilege to drive, license points, and insurance rates.We have tried and negotiated favorable dispositions in thousands of traffic cases over the last thirty years. We understand the inconvenience, costs, and consequences of these offenses. We will help you manage the frustrations associated with these offenses efficiently. Our approach is cost-effective. And you leave with a full understanding of the consequences of any disposition. In the event you decide to represent yourself, however, links to the North Carolina Department of Insurance website follows. https://www.ncdoi.gov/consumers/auto-and-vehicle-insurance/safe-driver-incentive-plan
-
Newsletter
Everyone Tells Me They Had Two Beers
12/29/2022Years ago, a young man described an encounter he had with a seasoned State Trooper. The Trooper was stationed outside a local beer joint in a small town in Eastern North Carolina. He saw the young man leave the bar, walk to a small car, and drive away. Nothing about what he saw gave the Trooper any reason to stop the man, other than he was leaving a bar, but he decided to follow anyway. The small car drove within the speed limit and carefully across a bridge near the bar. Nothing jumped out at the Trooper except that the driver seemed to take great pains to follow the rules. Isn’t that what a driver is supposed to do? The Trooper had a hunch and decided to stop the man. He approached the car to encounter a clean-cut, polite young man who answered all his questions clearly and without hesitation. At the same time, the young man was extraordinarily nervous. When asked if he had been drinking that evening, the young man responded, “yes, sir.” The Trooper asked how much, and the man said, “two beers.” The Trooper asked the young man to exit the car for field sobriety tests. He passed the tests and ultimately registered very low on a potable breath test. After getting up his nerve, the young man politely and hesitantly asked the Trooper, who had a gun and a badge, why he stopped and investigated him for impaired driving. The Trooper told him the truth, “You operated your car within the speed limit. You were incredibly nervous. And everyone tells me they have had only two beers.” The young man responded, “well, my mother is a strict Baptist and all I could think about was telling her I had been arrested for driving while impaired.” And, he really had only two beers that night. Luckily for him, those two beers were not enough to cause impairment or push him toward the legal limit for driving while impaired. The story of this encounter emphasizes the reality in a society dependent on cars for transportation. Good people drive after drinking. Sometimes, they drink more than allowed by law. Often, it is difficult to know when you have drunk enough alcohol to cause impairment or push yourself over the breath alcohol concentration that makes driving illegal. That is called driving while impaired in North Carolina. It is a crime even if most offenders are irresponsible instead of malicious. We hope this report answers some common questions about driving while impaired in North Carolina. How Does North Carolina Define A DWI? There are two ways to be convicted of driving while impaired in North Carolina: (1) You operate a vehicle on a public vehicular area with a breath alcohol concentration of .08 or greater or, (2) You operate a vehicle on a public vehicular after having a sufficient quantity of some impairing substance to appreciably impair your mental or physical faculties. Under the second prong of the statute, the substance that appreciably impairs the mental or physical faculties does not have to be alcohol. It can be a prescription drug, an illegal drug, or some other impairing substance. In other words, you would not have to shows signs of a 0.08% breath alcohol concentration if your faculties were appreciably impaired. At the same time, if you have a 0.08% breath alcohol concentration, you are guilty of driving while impaired, even if your physical or mental faculties are not appreciably impaired. What Are Common Misconceptions People Have About Being Arrested For DWI? Many people have misconceptions about the law related to driving while impaired. Three common misconceptions follow: (1) A person must take roadside, or standardized field sobriety, tests. (2) It is always an advantage to avoid blowing into the breath machine at the station. (3) There is no defense to the charge. The misconceptions are understandable because the science related to breath alcohol concentration, the driving while impaired statutes, and the legal proceedings are complicated. That causes people to conclude a driving while impaired (DWI) charge is the end of the world and that they have no defense to the charge. Neither is true. When Should Someone Plead Guilty To DWI? In general, a DWI arrest is only going to happen once. A young woman who weighs 110 pounds and cannot believe she blew a .08% after only a couple glasses of wine is unlikely to take any risks with alcohol in the future. We encourage clients to make every effort to keep a good record clean. We explain the ramifications of a conviction and point-out that pleading guilty guarantees that they suffer all those ramifications. The more we approach driving while impaired defenses like we would any other serious case, the better we serve our clients. In any other case, we investigate the facts, evaluate the options, and help our clients decide whether to proceed to trial or enter a guilty plea. We conduct a thorough investigation and evaluate the case before deciding how to plead. Many cases have defenses, and avoiding a conviction has many great benefits. For most people, that starts with keeping a good record clean of a criminal conviction. A driving while impaired carries significant costs and penalties are enhanced for a subsequent conviction. Pleading guilty, may be the right decision, but only after hiring an experienced criminal defense lawyer to investigate the case, evaluate your options, and help you decide how to respond to the charge. What Is The DWI Procedure In North Carolina? Everything begins with the stop. This point in the process is important, because it is a common challenge to a driving while impaired charge. After the stop, the officer investigates to determine whether probable cause to arrest exists. If so, the officer takes the driver to the station and offers the driver a breath or blood test. If the driver registers a breath alcohol concentration of .08 or greater, the officer takes them before a magistrate, who will issue a warrant, set conditions of release, and enter an order revoking their license for thirty days. Most people are released following a driving while impaired charge, but anyone arrested for DWI has the right to contact potential witnesses if detained. A driving while impaired charge is a misdemeanor in most cases and begins in district court. The court will schedule a first appearance to determine whether the driver wants to hire a lawyer or request court-appointed counsel. When we are hired, we appear for our clients at the first appearance and have the case rescheduled. The next step is to obtain all documents and recordings related to the police investigation. After reviewing that information, we attempt to interview the officer and any witnesses to the events leading up to the arrest. In North Carolina, any person charged with driving while impaired loses the privilege to drive for at least thirty days. After satisfying certain obligations, like obtaining an alcohol assessment and producing proof of valid insurance, the driver may be eligible for a limited privilege to drive to and from work after ten days without a license. After thirty days, most people can regain their license by paying a civil revocation fee. They keep the license while awaiting trial for the driving while impaired charge. In our jurisdiction, court dates are often rescheduled several times before we are able to schedule a trial. These delays allows both sides to gather investigative reports and recordings related to the arrest. Blood tests take longer and can cause lengthy delays. Sometimes these delays are beneficial. Other times, we push the cases to trial sooner. Each situation is different so the timing of the case is always part of our conversation with our clients when defending against a driving while impaired charge. Almost all misdemeanor driving while impaired cases are tried before a judge. If convicted, a client has ten days to appeal for a de novo trial before a jury. What Can Someone Expect When They Are Released from Jail? First, meet with an experienced lawyer. A good lawyer will begin investigating the case immediately. The first few days are generally a busy time. Your lawyer will enter an appearance in court. You will obtain an alcohol assessment to support your petition for a limited privilege to drive during the thirty-day pretrial revocation period. You must gather a document from your insurance carrier to satisfy the court that you have insurance. During the first court appearance, the court will determine whether you qualify for a court appointed lawyer or plan to hire counsel. If you hire a lawyer, that lawyer can enter an appearance and have the case moved to a new date to prepare your defense. What Happens To The Driving Privileges At That Time? If you are arrested, your license will be suspended for thirty days. If you need to drive to work, however, we can get you a limited privilege to drive back and forth to work after ten days, assuming you meet certain requirements. After thirty days, the Clerk of Court will return your license after you pay a civil revocation fee. Are Occupational or Hardship Licenses Available In North Carolina? Limited privileges are available if certain conditions are satisfied. For example, if you are a caterer and have to drive all hours of the night and weekends, judges usually grant a privilege, if you are eligible. Now, it is critical to understand that that privilege means exactly what it says. It is a privilege to drive to work. It does not mean you can go to a movie. A person cannot have any alcohol in his system while driving with a privilege. What Are Potential Penalties For A DWI Conviction? Most people are not sentenced to significant time in jail for a DWI conviction, especially for a first offense. The exception is when someone is injured as a result of the driving, or when someone is driving with a child in the car. For most people, the greatest penalties are the collateral punishments associated with a driving while impaired conviction. These punishments are not directly associated with the judge’s sentence. Examples of these collateral punishments include loss of your license, increased insurance, potential job problems, and creating a criminal record. These consequences create lingering burdens for anyone convicted of driving while impaired. What Factors Can Enhance Or Aggravate A DWI Charge? The biggest factors that aggravate a DWI charge are injuries or death caused by the driving that resulted in the DWI conviction. That is the case whether you have a clean record or multiple DWI convictions. A conviction to driving while impaired causes a mandatory jail sentence if the driver had a passenger under eighteen years old in the car at the time of arrest. Next, a subsequent conviction within a seven-year period requires a minimum jail sentence. Even if the judge found mitigating factors, the grossly aggravating factor of having a prior conviction would force the judge to sentence you to some jail time. Assuming there is only one grossly aggravating factor, a jail sentence could be up to a year. For a third offense within a seven-year period, the sentence could be up to two years in prison. So, the potential active punishment increases with each conviction for driving while impaired. Receiving a DWI while your license is revoked for another DWI charge is also a grossly aggravating factor that requires the judge to sentence the driver to some period in jail. Are Drug DWI Cases Easier To Defend Than Alcohol Related DWIs? Driving while impaired charges based on driving after consuming an impairing substance other than alcohol adds a level of complexity. The law is unsettled about certain standards for determining impairment. The defense may want to consult an expert to evaluate the blood sample or assist with the cross-examination of the state’s expert. Even if there is little scientific support that shows when a person is impaired based on the concentration of a chemical in the blood, a person can be convicted if they are appreciably impaired by a substance. A particular concentration is not required. Can The Accuracy Of A Blood Test Be Challenged In A Drug DWI Case? The accuracy of a blood test result- in terms of the significance of the concentration of a drug- can be challenged. Whether the driver was impaired by a chemical present in a blood sample is always a question. There are often questions about the protocols and the procedures that used to acquire the sample as well. More often the question is whether the person was impaired at the time of driving by a particular substance discovered in a blood sample taken sometime after driving. Most states have yet to develop a particular standard. In North Carolina, a blood alcohol concentration of 0.08 is the limit set by statute for alcohol. There is not a particular standard for other substances. The questions are whether a blood test revealed the presence of an impairing substance and whether the substance caused impairment at the time the driver operated the motor vehicle. How Much Does Someone Have To Rely On Science In Defending A Drug DUI Case? All drug impairment allegations require us to research scientific articles. Sometimes we hire experts to help us determine the impact of the presence of a particular substance in a blood sample. Many drugs are not impairing. We may have a question whether a particular substance is impairing or whether it is impairing at a particular concentration. Consulting experts is common in these situations. What Happens After Someone Is Pulled Over On Suspicion Of A Drug DWI? Some police officers are certified as Drug Recognition Experts. They claim to have the ability to determine whether a person is under the influence of drugs based certain features of the person’s appearance. If the officer who stopped the driver is not certified, they may call someone who is certified to come to the scene and determine whether probable cause exists that the driver is impaired by some drug. If the officer finds probable cause, they are going to arrest the person and ask them to consent to a blood test. If a person consents to a blood test, a nurse or other certified person will draw a sample of blood for the lab to analyze in effort to determine whether the person has drugs in their system. There is nothing illegal about driving with drugs in your system it’s only illegal to drive while under the influence of an impairing substance. If the person doesn’t consent to a blood test, officers will seek a search warrant from the magistrate. If the magistrate issues a warrant, they’ll take the blood sample based on the warrant and send it to the lab for analysis. Depending on the results of the blood analysis, the defense may need to hire independent experts to review the analysis. In some cases, the defense hires a lab to conduct an independent analysis of the blood sample. What Are Penalties Associated With Refusing A Blood Test In A Drug DWI Case? If probable cause to arrest for an implied consent offense (also referred to as an impaired driving offense), the officer can request that the person submit to a chemical test. If the officer has reason to believe that the driver is impaired by something other than alcohol, they will probably ask the person to submit to a blood test. Under these circumstances, refusal to submit to a blood test will result in a magistrate issuing an immediate revocation of the person’s license. In response, the North Carolina Department of Motor Vehicles would revoke the person’s license for a year. The driver would have the same hearing rights to contest the revocation with the Department of Motor Vehicles as for refusing a breath test. Should Someone Ever Admit Taking A Drug To An Officer? I advise people in most cases to avoid speaking to an officer without the advice of counsel. If you choose to talk to an officer, however, you should tell the truth. Volunteering information regarding past drug use can be detrimental in two ways. First, admitting to drug use may provide law enforcement with probable cause to take a blood sample. Secondly, if they get a blood sample, they are ultimately going to rely on the results from that test rather than your word. Making statements inconsistent with what the blood test shows will hurt your case. Even if you are honest and the blood test results are consistent with what you said, the question remains: were you impaired by the substance? The judge or jury is going to make that determination based on what the experts say about the concentration of drugs in the blood and the evidence witnesses observe at the time of the offense. What Happens If Someone Refuses A Chemical Test? After an arrest for driving while impaired, the arresting officer offers the driver the opportunity to take a breath or blood test. The officer decides which test to offer. In North Carolina, the driver has a statutory right to refuse a breath or blood test, but that decision has consequences. First, driving while impaired is an implied consent offense. That means every driver agrees to take a chemical test when they decide to drive. You can refuse but are accepting a penalty of an automatic suspension of your license for one year based on the refusal. That penalty is imposed a short time after arrest and is not dependent on a conviction. Significantly, you are ineligible for a limited privilege to drive for six months. While avoiding a chemical test may be beneficial to your defense under some circumstances, the automatic loss of your driving privilege without the ability to obtain a limited privilege for six months is a significant burden to most people. Second, the arresting officer may seek a search warrant for blood after a driver refuses. If the search warrant is granted, the driver must provide a blood sample, the state tests the sample, and the driver loses their license for a year based on the refusal. That practice does not mean the driver should submit to a chemical test in all circumstances but the consequences for refusing are a significant consideration. Third, a refusal can be held against the driver in court. Judges differ on the amount of weight to give a refusal. Some judges recognize that drivers have understandable suspicions about the process. Particular judges give refusals little weight and focus on the driving, interaction with the arresting officer, and the field tests to determine whether the driver was appreciably impaired. Others assume that a driver must be hiding something if he refuses to take a chemical test and weigh refusals substantially in favor of impairment. A driver has to expect a judge or jury to consider refusing a chemical test as a factor in favor of impairment. Additional Information About Chemical Test Refusals If a person refuses to submit to a chemical test, the person should request a hearing with the Department of Motor Vehicles. Those hearings are difficult to win but can be valuable. Sometimes we win the refusal hearings and avoid the automatic license revocation. In almost all cases we obtain valuable information during the hearings that can assist in the defense.
-
Newsletter
When can I expect your call?
11/01/2021In News of the World by Paulette Jiles, Civil War Veteran Captain Jefferson Kyle Kidd makes a living traveling around Texas reading newspapers to people who pay an admission fee of ten cents. Apparently, news was scarce in the years following the Civil War. I suspect the literacy rate increased Captain Kidd's market too. The book is centered around Captain Kidd's efforts to transport a young girl safely from one part of Texas to another. We know three things about Texas are beyond dispute: To anyone with a connection to Texas, it is the greatest state ever. To everyone else, that conclusion is incomprehensible. Texas is really big. So Captain Kidd had to travel a long way through hostile territory in hopes of returning the girl to her family. But that saga is not what reminded me of News of the World this week. Captain Kidd's vocation must have been for the time like a mix between local theater and podcasting. How would anyone have known if he made it all up just to entertain his audience? I love podcasts. I am especially entertained by the ones focused on business, marketing, and self-help. (The political ones stress me out.) You learn over time and with a little research that many of the interviewers and guests are not always peddling data-based information. In truth, some are quite skilled at creating new ideas to improve our lives without much supporting research. They make up for this shortcoming with charisma and good marketing, usually packaging their ideas into a formula and distributing them in courses or books. Last week I listened to a podcaster interview Nir Eyal, author of a book called "Indistractable." He claims it will teach us to control our time and attention by understanding the psychology of distraction. According to his website, his book is supported by scientific research and I have no reason to doubt it. What caught my attention though was his emphasis on the importance of separating from our phones and all the associated alerts for periods of time. I am with him on the alerts. But clearly this man does not make a living being accessible to people who get cold calls from government agents, internal investigators, or their professional licensing agencies. Most certainly, he does not have college-aged children. My son moved home from college like every other college student in America in March 2020. We decided after a couple weeks that allowing him to stay in a cabin at the coast would be beneficial for everyone. After George Floyd's death, he and friends decided to attend a protest. With few options in Carteret County, they drove to Raleigh. Like any parent of a young "Bernie Bro," I was happy he cared, concerned he may do something stupid, and hopeful he would turn the advocacy into some positive action, like voting, volunteering, or working. So before the protest I offered advice: "Only attend the formal, choreographed, peaceful protest. You will hear good speakers, express yourself, and avoid being associated with any unsanctioned misdeeds." Around 11:00 p.m., we got a FaceTime call. You will be surprised to know that he did not take my advice. He was in a friend's apartment in downtown Raleigh with a number of comrades -- red-faced, agitated by the authoritarian response to the protest, and righteously indignant. Of course I was relieved to see he was safe and confined only by his friend's mother's expensive downtown apartment. So I offered my second piece of advice: "Stay there for the night. You are safe from the chaos outside." At 4:00 a.m. I heard the phone buzz beside my bed. The dreaded 4:00 a.m. call. Shockingly, my son had ignored my second piece of advice. He was half-way back to the coast in his mom's Honda Accord when he realized it was low on gas. He made it to the gas pump but realized he had another problem. Son: "Could you transfer a little money to my account for gas?" Father: "Why don't you ask your friend for a few dollars?" Son: "She is asleep in the back and I don't want to wake her." It was 4:00 a.m. and he wasn't calling from a hospital, jail, or wreck. I transferred the money. I am not sure when I transitioned from answering the phone in the middle out of concern for my clients to answering it out of fear for my children. But I'm unlikely to follow Mr. Eyal's advice anytime soon. We are criminal trial lawyers. We represent people accused of criminal offenses and professional misconduct who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. I listened to another podcast interview of a woman who is selling a book about the benefits of giving yourself a high five each morning, which allegedly solves all sorts of problems. Can't hurt!
-
Newsletter
What should I do with these photos?
9/20/2021Some people do not understand modern methods of communicating and connecting. Emojis are the little images young and old alike include with their texts. Microsoft is updating its emojis this year just as people start to understand what the old ones mean. Acronyms like "idk," "ikr," and "lmao" may be obvious to us, but other people need explanations. Some recipients have to text their children with questions like "wtf does this one mean?" Dating rituals have changed as well, especially during the pandemic. Sheltered or not, people want connection, even if it is from afar and through a computer device. In one magazine story I read but somehow misplaced, a woman described her courtship with a man. They took Covid seriously, wore masks from the beginning, and followed stay at home orders strictly. The relationship started with emails and proceeded to phone calls. As they got to know each other, they started meeting through a video application, probably Skype. Over time, the meetings became more frequent, lasted longer, and became more intimate. They felt a strong connection and, after several weeks, decided to take a socially distanced walk in a city park. The writer explained how strange it was meeting this man in person for the first time after having so much virtual contact, especially someone "who had seen every inch of [her] body." That last statement caught my attention. I wasn't shocked but was thrown off just a bit. The writer was not in college. In fact, she was writing for a national magazine. I assumed socially distanced coffee, touching boots under the table, or linking sleeved elbows might precede the nude images for grown ups. But, I was being naive and forgetting my professional experiences. I had never heard of Bumble until 2020 when I discovered it in relation to one of my cases. Bumble has more realistic expectations of dating than some people who dated before digital photography existed. Its experts even offer advice about virtual intimacy. That's fine by me, except for one issue that could create problems in a college town. Many of these dating applications have a minimum age limit of 18, which is close to the age of 17 years, ll months, and 29 days. A day or so may not make a lot of difference in the physical appearance of a man or woman posing for photos, but it makes a lot of difference under state and federal statues. The age of consent in North Carolina is 16, which means a sixteen year old boy and a fifty year old woman can legally enjoy each other's company in whatever way they choose, as long as the sixteen year old is clothed for any photos. If the boy were to send the woman a nude photo of himself he would be producing and distributing child pornography. If the woman were to keep it, she would be possessing child pornography. Understandably, violating statutes designed to protect minors from sexual exploitation can result in substantial prison sentences followed by registration as a sex offender. It doesn't always play out that way when teenagers take, send, and receive the images, but I prefer my clients not test the wisdom of an ambitious prosecutor. Dating services like Bumble may have a minimum age. But, who is checking? So, if it's a close call, they really shouldn't have those photos, even if they are allowed to see it all in person. We should add legal explanations to our practical warnings about the wisdom of flashing and sending digital images before that first walk in the park. That's especially true if our warnings are to the folks in our lives who understand the emojis and interpret the acronyms . We are criminal trial lawyers. We represent people accused of criminal offenses and professional misconduct who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. I got a text yesterday that was just an image of two eyes. No words included. I am waiting to hear what my children say it means.
-
Newsletter
How can you protect my secrets?
9/07/2021Brandon Stanton worked as a bond trader in Chicago in 2010. He bought a camera and started taking photos in downtown Chicago on weekends. When Mr. Stanton lost his job, he moved to New York City with a plan to photograph 10,000 New Yorkers and plot their portraits on a map of the city. These photographs led to discussions with his subjects and he started reporting those in a blog, Humans of New York. I had not heard of Humans of New York until a recent visit to the City. We were sitting in Madison Square Park near Shake Shack. My son and a friend noticed a Black woman, elegantly dressed, riding in a wheelchair. When they noted "she is famous," I assumed she was some film star or musician. Turns out, her name is Stephanie and Mr. Stanton reported her story in a series of thirty-two blog posts entitled 'Tattletales From Tanqueray.' Her story begins in Albany where she lived as a child in a “neighborhood [that] wasn’t too nice, but it was better than the black neighborhood on Hill Street.” Stephanie hated her mother who beat her when the house wasn’t clean enough. She reported, “she never showed me love.” Humans of New York, 'Tattletales From Tanqueray.' (2/32) Eventually Stephanie got in some legal trouble. A judge gave Stephanie the option of returning to live with her mother or going to prison. Stephanie chose prison. (5/32) Following her release, Stephanie moved to New York City, shared a room at the Salvation Army with a prostitute named Edna, and worked at a clothing factory off Washington Square. (7/32) A ballet dancer as a child, Stephanie found the dance clubs in Times Square. She “got along with everybody: the pimps, the hustlers, the drug dealers, the mob guys.” (9/32) One early side hustle was to sell mink coats for a mobster who stole them from the closets of wealthy women. “I’d wear them to all the clubs and wait until I got a compliment. Then I’d unload it. Joe gave me a commission, plus I always added an extra ten percent to his price. So I was making money on both ends.” (9/32) Stephanie describes being hired by a New York madame to entertain the owner of a famous department store, working as a go-go dancer, and meeting the love of her life. (13-15/32) It is hard to imagine she left anything out. I am fascinated by the Humans of New York project: the photos, the depth of the stories, and especially the transparency. How does Mr. Stanton get people to disclose such intimate details knowing he will report their secrets in his blog? And, why do they tell? Much of my working life is spent protecting my clients’ privacy or working to repair the damage from breaches caused by accusations, subpoenas, and search warrants. Our clients suffer significant damage to their reputations, livelihoods, and relationships from the public disclosure of their secrets, whether its mundane financial information, personal correspondence, or intimate photos. There is no simple or singular strategy for protecting someone's privacy and reputation. We may negotiate protective orders, request relief through litigation, or develop a messaging plan. Every situation is different. Sometimes the damage is done before we meet our clients and we are left to repair the injuries. That’s no small challenge in a culture that leverages social media to vilify people for alleged mistakes, even when the mistakes are decades old. When clients ask me how I can help protect their secrets, I tell them the first step is to avoid answering questions, especially if they are approached by a guy carrying a camera in New York City. But I am still glad Stephanie told her story. We are criminal trial lawyers. We represent people accused of criminal offenses and professional misconduct who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. While publishing 'Tattletales of Tanqueray,' Mr. Stanton raised funds to benefit Stephanie, who lives by herself and suffers a number of health problems. By the end of the series, he had established a trust of $2.6 million from the funds.
-
Newsletter
Should the bullies go unanswered?
7/11/2021Sallie Krawcheck has been a fixture and powerful force on Wall Street for decades. Today, she is the chair of the Ellevate Network, a global professional women's network, and CEO and co-founder of Ellevest, a "digital-first, mission-driven investment platform for women." Among her objectives is the goal of elevating women by helping them build financial security. Ms. Krawcheck is not offering advice without authority. Before those roles, she was CEO of Merrill Lynch and Chief Financial Officer for Citigroup. She is a 1987 graduate of the UNC School of Journalism where she attended as a Morehead Scholar. From there, Ms. Krawcheck made a name as a research analyst before earning an MBA at Columbia. I have heard that she excelled as a high school athlete. We are all human, but the idea that Ms. Krawcheck ever felt insecure, vulnerable, or anything less than completely impressive was hard for me to imagine. That was, until I read an interview years ago where she was quoted as follows: "[In middle school] I had the glasses, the braces, the corrective shoes. I was half-Jewish, half-WASPy. I couldn't have been further outcast[.]" ... "There was nothing they could do to me at Salomon Brothers in the 80s that was worse than the seventh grade." I thought about her disclosure this week as I was considering the potential impact of social media. Recently, we have consulted with a number people suffering from social media attacks. Most are young. Boys have been accused of inappropriate encounters that allegedly occurred years ago. Others are maligned for their association with a person who committed some misdeed. One person was accused and threatened over social media for allegedly damaging the property of someone he never met. It can seem trivial, until you or your loved one is the target. Often, the targets are entering phases in their lives when they hope to join organizations, form lasting friendships, and build good reputations. Parents fear that the virility and permanence of these social media attacks will have lasting impacts on their children's emotional development, confidence, and reputations. "What happens when he applies for a job in ten years?" We aren't the only ones concerned. Enterprising businesses are offering insurance for “cyberbulling.” While few people have the coverage now, the promoters project that it will be common in a few years. But to collect, you have to first suffer some emotional, professional, or economic damage. Our goal is to prevent or minimize that. We are left with the difficult choice of potentially highlighting the issue with a response or hoping to minimize the damage by allowing the attacks to die a natural death. The answers are not always clear and have more to do with our clients' circumstances and tolerance for risk than our legal assessments. Standing up to the bully has been universally accepted from the beginning of time, but social media is new. Punching someone in the nose is simpler than developing an effective media strategy. Defamation suits are difficult, and the scrutiny points in both directions. We have generally counseled restraint, but I am beginning to question that advice. The fight has been one-sided and unfair with the power belonging to the bullies. A more aggressive course may be timely, necessary, and eminent. In fairness, Ms. Krawcheck said that she was an outcast, not that she was bullied. Whatever the nature of her problems in middle school, they were not compounded by an onslaught of negative social media attention. Could that additional pressure have changed her trajectory completely? Nah, she would have kicked their asses. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. Take heart, UNC has two former players in the NBA finals. Justin Jackson did not play for the Bucks last night, but Cam Johnson had 8 points, 3 rebounds, and 2 assists for the Suns.
-
Newsletter
How do I speak for a frustrated, lonely widow?
6/27/2021Do you remember Imelda Marcos? She does not get a lot of press in the United States these days, but is still alive. She was making headlines in the Philippines just last year. Marcos and her husband, Ferdinand, ruled the Philippines for twenty-one years. According to some reports, the couple was responsible for imprisoning, torturing, and killing thousands of their opponents. Yet, many of us remember Ms. Marcos simply for her excesses, especially her reported collection of 3000 pairs of shoes. Actually, the United States government indicted Ms. Marcos "for the alleged plunder of millions of dollars from the Philippine treasury." The prosecution centered around allegations that she transferred that ill-gotten money to buy commercial buildings in Manhattan, thereby defrauding banking institutions to finance the purchases. The Associated Press uncovered an internal Justice Department document that claimed United States Attorney Rudolph Giuliani “guaranteed” a successful prosecution. Famed trial lawyer Gerry Spence represented Ms. Marcos and responded to the relentless publicity by commenting on her relationships with U.S. presidents and humanizing her. ″Now suddenly these people become the enemies of this nation when it’s convenient and useful to do so[.]″ ″There couldn’t be a more frustrated and lonely person in the world than a widow who’s been charged with racketeering, not only by her own government, but by the government of the United States of America,″ he said earlier in an interview in the Jackson Hole News of Wyoming. ″She’s a helpless widow without many friends. I want to be her friend. I want to represent her.″ (AP News, Racketeering Case Against Imelda Marcos Goes to Trial This Week, Vera Heller, March 17, 1990.) A federal jury in New York acquitted Ms. Marcos in 1990. Giuliani has been in the press this week for different reasons. I don't need to pile on his problems, but that publicity reminded me of the Marcos' trial and Gerry's quote. Navigating the press and dealing with publicity are among the most difficult obligations of any defense lawyer. Being accused of serious crimes or professional misconduct is demoralizing. Any news coverage announcing an accusation is negative by definition. It's bad enough to be consumed with your own problems but humiliating and overwhelming to know that you have become the focus of your neighbors' attention. Our clients almost always want us to respond. I find navigating the press and responding to publicity among the most perplexing obligations of any high-profile representation. After years of studying famous cases, the lawyers involved, and their methods of dealing with publicity, I remain uncertain about the best approach. After that study and some practice, I am sure of a couple things: The primary reason lawyers give for speaking to the press on the record is that responding is important to balance the coverage and defend our client's reputation publicly. The primary reason many lawyers talk to the press is that responding is important to building the lawyer's public reputation. Now, I am not cynical about lawyers. Nor am I dismissive of our obligations to help our clients' navigate publicity. But, I do think the process requires a great deal more introspection than some may practice. I consider the following preliminary questions helpful: How important is my client's reputation to his future? Let's face it, that answer is not the same for everyone. Former Speaker of the North Carolina House of Representatives Joe Hackney once told me "there are a whole lot of ways to make people forget over time." That may be true, but the higher the profile of the personality, the longer it takes. Are the consequences of losing the case greater than losing the battle over a person's reputation? Years ago, I tried a high profile murder case in Durham. The press was relentless. Although we spoke to the reporters daily, we refused interviews or quotes for the record. (See number 3) The trial ended in a hung jury. To this day, true crime shows broadcast stories about the trial, which are painful for my client and damaging to his reputation. But, my client lives, works, and raises his son in another state. He would not trade that freedom for any amount of favorable reporting. Can anything I say in public help? I know many lawyers will disagree, but usually I conclude the answer is no. That's not to say I don't talk to the press or make sure reporters are aware of important developments in the case. But, my public comments are not going to balance the coverage or change the narrative very often. I can list cases where that strategy would have been wrong, such as Duke Lacrosse. But those cases had more to do with the subjects involved, the facts of the cases, and the skills of their lawyers than any generalized approach. I am certain of one thing. Ignoring publicity is never a legitimate strategy. We have to consider its impact to our clients' defenses, their reputations, their emotional well-being, and their futures. We just might choose not to do so on "Dateline." We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. The Tour de France begins tomorrow.
-
Newsletter
Get me out of this mess, and do it quick.
6/18/2021We are bumping into our friends at the courthouse again. Despite the quiet and distance of the last fifteen months, our friends have not changed much. A lawyer friend of nearly thirty years stopped to chat on the courthouse steps yesterday. He was headed to another county. I was due in court. But, we had not seen each other for a while and traded stories for about twenty minutes. This friend is in his seventies, looks better than anyone who knew him as a young man would have expected, and tells a great story. My friend was raised in an Irish Catholic family in an Irish Catholic neighborhood in New England. Over the years, he's given a couple rationales for his decision to enlist during the Vietnam War. One version is that his mother found the only college in America that would accept him. She gave him the choice to enroll in the Catholic college or enlist. My friend chose Vietnam. Another version is that enlisting was the only option for young men in his neighborhood. Their fathers and grandfathers fought in the World Wars. Their mothers expected them to serve in the next war. Either way, my friend left his wife and young son for Vietnam in the middle 1960s. He did not think he would survive a year as an infantry soldier. So, he followed orders and fought bravely. For the first ten months. At which point, he started to realize he might outlive his tour. His sense of duty was suddenly tempered by more practical goals. My friend claims that his most aggressive act during the last couple months was to put a foot out in hopes of catching shrapnel. "I was too skinny to get hit." "With two weeks left, you couldn't have found my ass anywhere near a fire fight. I was not going to leave as a tragic, patriotic story." Time is a strange invention. I am sure some days felt like a lifetime for my friend during his tour. Some days roll by in the law office at the speed of sound. A day in trial feels like an eternity and the consequences last forever. Funny how a relatively short span of time can have so much impact and alter our viewpoint so dramatically. But, little changes our clients' universal goal: solve my problem, and do it quickly. Stress associated with fear of the unknown has as much influence on decision-making in criminal cases as any single factor. The desire for relief, even if short-lived, creates conflict between us and our clients at times. We rarely have all the answers, but we usually know when our clients are choosing the wrong ones. Like my friend beginning his tour, our clients sometimes have trouble envisioning their long term prospects. The immediate suffering caused by the direct and indirect consequences of an allegation of criminal or professional misconduct is overwhelming and consuming. Every situation is different. Sometimes, cutting our losses quickly is a valid strategy. When it is an option, we are wise to move quickly. Other times, quick decisions are uneducated, emotional moves that bring short-term relief at the price of long-term success. What's certain is that the only choice is to fight bravely when we must and take advantage of a quick, favorable exit when we can. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. Happy Juneteenth!
-
Newsletter
Can I Trust You to Cure Me?
6/14/2021You may recognize this person. If she isn't a close friend or family member, you know someone with a similar personality. She doesn't tolerate fools. Although she is not completely humorless, she usually has better things to do than engage in light-hearted conversation. Her mind is sharp and her use of the English language exacting, although not particularly gentle. This personality serves her well professionally but creates challenges in her personal life. You tolerate her out of some long-standing loyalty, weakness, or blood relationship. One day, she gets an unfavorable diagnosis. It could be anything, but let's assume it's cancer. Now, I can imagine accompanying such a fictional friend or family member to a medical appointment. After a while, she informs the nurses that she will be stepping outside for a few minutes. They decide based on prior interactions not to interfere. As we get just outside the door, she pulls out a cigarette, lights it, and announces "that doctor's not doing a damn thing to cure me." I don't know whether the doctor deserves her derision, but I recognize the patient in some clients. Everyone we serve asks at some point in the relationship "can I trust you to cure me," no matter how overwhelming the odds or obstacles. I settle on three practices that increase our chances of gaining another person's trust. We are trustworthy. I don't mean that we are good, honest people in general. Of course, that's true. I am talking about traits associated with helping someone solve a problem. That means, we are truly honest about our capabilities and limitations. As difficult as it sounds, we may have to admit that we don't have all the answers. Sometimes, we are well served to decline to help or our greatest service is finding someone else to assist. Most important, we do what we promise to do. We establish reasonable expectations from the beginning. Our clients require access. But that access has natural and healthy limitations. Our ability to respond, meet, and prepare varies based on a variety of circumstances. Certain things are beyond our control. Helping others distinguish what we can and can't control is important to establishing reasonable expectations. A prognosis can be difficult, even for the most experienced and skilled professional. Helping our clients recognize the obstacles that stand between our understanding of any given situation and the ultimate outcome is the foundation of any good working relationship. At the same time, it is one of the most difficult. What is certain is that we can't afford to allow our clients to expect an outcome radically different from what our experience and judgment tell us is reasonable. We show genuine empathy. That may sound a bit strange coming from a criminal trial lawyer. Sometimes we represent people who committed horrible acts or, more often, made really stupid mistakes. But, several things are critical to remember: Self-inflicted wounds hurt just as much as the ones caused by someone else. The world's view of a person is often wrong, especially following the grinder of assumptions, gossip, and social media. Many people find themselves in trouble because of these misconceptions, misunderstandings, and false conclusions. Either way, we should not be doing this work or providing any other service that involves human frailty unless we can appreciate something about that person's background or circumstances that led to our relationship in the first place. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. Tomorrow, our "little one" graduates high school, all 6'5" of him. Congratulations Will! (Although I doubt you read this far even if you got this message.)
