The 6 Worst Mistakes You Can Make Hiring a Defense Attorney

Tuesday, October 13th, 2015

Just as I refer someone to an attorney who specializes in an area of law I am not comfortable in, most of my clients come through referrals by other attorneys who, in part because of my reputation for excellence in criminal law, recommend that the prospective client contact me.

Other times a client finds me by searching the internet, making an appointment with me, and comparing me to other attorneys who they have also found on the internet.

In the 30 years that I have been an attorney, I have seen firsthand the mistakes that clients routinely make when deciding who they should hire to represent them or their loved ones who are charged with crimes.

The majority of prospective clients have never been in trouble before and don’t have a grasp of the criminal justice system. Their nervousness about “being in trouble” leads them to choose an attorney who generally is overworked and unable to focus on their specific case.

Over time, I have seen prospective clients choose the wrong attorney for the wrong reason. Oftentimes, a client will decline to retain me, only to return six months later telling me that exactly what I had originally said is coming to pass. There are general “themes” when the client returns to my office and what follows are the 6 most common “themes” that seem to happen.

1. Hiring a Defense Attorney Who Lacks Specific Experience in Your Case Type

The first thing someone should do when looking to hire a criminal defense attorney is research the crime with which the person is charged. For example if someone federal drug conspiracies. Experience does not simply mean an attorney who has a volume practice where they process the client through the criminal justice system. Experience means someone who has earned the respect of the Government by fighting for their clients by way of going to trial or through filing pretrial motions.  Like anything else in life, respect is the greatest asset anyone can have.

2. Not Asking Hard Questions

After researching the crime, make an appointment with 3 or 4 attorneys. Do not be afraid to ask hard questions. You are hiring someone who will literally have your life in their hands.

3. Allowing Disorganization

When you interview an attorney, see what kind of office they have. It is easy to make promises on the telephone or during the first interview. But, if you have to wait to meet with the attorney that is a bad sign. Similarly, if their desk is full of papers it shows that the attorney is not going to be focused on your case.

4. Be Wary of an Attorney Advising You to Plead Guilty Early in Your Relationship

If during the first appointment, the attorney discusses pleading “guilty” that is a warning because the attorney should know very little about your case.  Discussing pleading guilty without having any idea of the facts involved or possible defenses shows that the attorney ultimately will be more interested in having you plead “guilty.” It is similar to a brain surgeon diagnosing you with brain cancer during the first appointment without doing any tests.

5. Not Doing Your Due Diligence on Previous Cases

Ask questions about the number of federal criminal trials the attorney has had in the past year or five years. Get the names of the cases so that you can look them up. Get the names of former clients you can call to see whether the attorney will actually fight for you.  It is an indication that a lawyer will not fight hard for you if they never go to trial.  Similarly, getting an idea of how hard they worked for former clients is indicative of the type of relationship the attorney has with their clients.

6. You Get What You Pay For

The issue of fees is something that goes into hiring an attorney. Unfortunately, the reality of life is that the better the attorney, the more it will cost. Volume attorneys are cheaper than quality attorneys and you need to accept that a good federal criminal attorney will be more expensive.  If you are comfortable with a particular attorney, do whatever you possibly can to hire that attorney.  Otherwise, you generally will end up with someone who you will never feel is doing a good job for you.

Federal Law Regarding ACLU v. Clapper, No. 14-42-CV (2d Cir. May 7, 2015)

Wednesday, May 20th, 2015

The Second Circuit saved itself some trouble in their May 7 decision, ACLU v. Clapper. Faced with a challenge to the NSA’s bulk phone metadata collection program, the federal appeals court determined the practice exceeded the scope of the Foreign Intelligence Surveillance Act, particularly Section 215 of PATRIOT Act amendments.

For now, Section 215 allows the FBI or NSA to obtain “any tangible item” relevant to an authorized investigation, but the provision expires June 1. Because the vast majority of these records do not relate to any particular investigation, the NSA has been enjoined from continuing these mass sweeps of American’s information. In doing so, the court obviated the need to address Fourth Amendment claims raised against NSA. As such, the case does not seem to have much impact at first glance.

Interestingly though, the court took its time to appreciate the “daunting” task of addressing these issues. While the NSA denies recording actual phone conversations, the information they obtain through metadata collection implicates significant privacy concerns. Who you call and when, intuitively serve as “proxies” for recorded voice content.

The second circuit also offers a hint as to how they might analyze similar Fourth Amendment claims in the future. Since the landmark case, Katz v. United States, the “reasonableness” of societal privacy interests have become intrinsically interwoven into Fourth Amendment Jurisprudence. Previously, the law could only account for physical invasions and stood unprepared for modern, electronic investigative tactics.

This opinion seems to suggest that congress itself could make determinations of reasonableness. The case states, “endorsement of the Legislative Branch of government provides some degree of comfort in the face of concerns about the reasonableness.” Congress could not escape the Fourth Amendment completely, but the court says it will give weight such legislative evaluations of reasonableness.

The notion of legislatively constructed “reasonableness,” suggests the such sweeping searches might withstand Fourth Amendment challenges in the Second Circuit so long as statutes provide for them. Should Congress amend and extend the PATRIOT Act this June to account for Clapper, American courts may soon encounter another watershed moment for Fourth Amendment. Stay tuned.


ACLU v. Clapper, No. 14-42-CV (2d Cir. May 7, 2015) available at

Orin Kerr, Second Circuit Rules, Mostly Symbolically, That Current Text of Section 215 Doesn’t Authorize Bulk Surveillance WASHINGTON POST, May 7, 2015.

Rodriguez v. United States Analysis by Edwardsville Criminal Defense Attorney, John Stobbs

Thursday, May 7th, 2015

Recent events have forced our society to confront unpleasant realities with respect to law enforcement. In light of numerous recent police controversies, the public’s faith in those who “serve and protect” has faded substantially. Only two days after Freddy Gray’s suspicious death in police custody, the Supreme Court issued its decision in Rodriguez v. United States. The case represents a significant, but incomplete, victory for those fighting against the abuse of police power. Tensions between police and communities have permeated throughout the Supreme Court’s most recent term. Slate writer Mark Joseph Stern opined that Rodriguez signifies a change of perspective attributable to fallout from Michael Brown’s death in Ferguson.

On March 27, 2012, Nebraska K-9 Officer Morgan Struble pulled over Dennys Rodriguez after observing his SUV veer momentarily onto the shoulder. Struble then inspected Rodriguez’s license and registration, checked for outstanding warrants, and issued a written warning. Vexingly, the officer refused to allow Rodriguez to leave despite issuing him a ticket and returning all his documents. Instead, Struble waited for a second officer to arrive at the scene before having a police dog sniff the car for drugs.

The Eight Circuit Court and Supreme Court Clash

Seven or eight minutes passed from the issuance of the ticket and dog’s alert.  After the Eighth Circuit affirmed the conviction, the Supreme Court reversed. The ruling, described most generally, precludes police officers from extending a traffic stop longer than necessary to address the traffic issues at hand and “negligably burdensome” safety precautions. Once the police hand you a ticket, they must let you leave. The ruling seems straight forward enough, but concerns remain regarding the practical enforcement of such a restriction and its ramifications for further cases.

A close look at Justice Ginsburg’s opinion for the Court’s 6-3 majority reveals some interesting questions about the interplay of timing and the interests served by a traffic stop. Routine car stops necessarily entail certain activities related to the enforcement of traffic laws. The Court expressly notes checks of registration, insurance, licenses, and outstanding warrants as acceptable police activities. Additionally, police may undertake certain safety precautions which otherwise do not advance the interest of the stop. The opinion unequivocally states, police seizures remain lawful “so long as [unrelated] inquiries do not measurably extend the duration of the stop.” The opinion also makes clear that officers cannot drag their feet while conducting permissible activities because authority for the seizure ends “when tasks tied to the traffic infraction are—or reasonably should have been—completed.”

Rodrigues vs. United States Provides Guidance for Police Conduct

The critical inquiry for future cases lies in the nature of police conduct: was the officer advancing goals related to the “mission” of the stop or reasonable safety interests and, if not, did these activities extend the duration of the stop? Rodriguez provides some guidance. Under Ginsburg’s rationale, activities aimed at “ensuring that vehicles on the road are operated safely and responsibly” relate to the goals of enforcing the traffic code and are thus permissible. Conversely, actions directed towards the enforcement of “ordinary criminal wrongdoing” do not relate to such goals and may not be undertaken unless doing so does nothing to slow down the process.

Here lies the failing of Rodriguez. Rather than outrightly prohibit police overreach, it seeks to disincentivize it. This failure becomes apparent when one considers the case of a traffic stop conducted by multiple officers. If Officer Struble rode with a (human) partner or backup arrived earlier, one officer could handle the proper duties for the stop while the other peers in windows, does “safety” pat-downs of other passengers, or walks a drug-sniffing dog around the exterior of the car. In fact, the latter situation occurred with the Court’s approval in 2005’s Illinois v. Caballes.

This case has rightly been viewed as a significant step towards curtailing the potential police overreach and pretext with respect to the traffic stop. One would hope, as it has been suggested, the Supreme Court has taken stock of the problems police have with overreach. However, while the Court appears to be moving forward, they fall short of fully appreciating problems at hand. They have adapted, but they are still behind the times.


Mark Joseph Stern, The Ferguson Effect, SLATE, April 21, 2015

Orin Kerr, Explaining Heien and Rodriguez, WASHINGTON POST, April 22, 2015, available at

Orin Kerr, Police Can’t Delay Traffic Stops to Investigate Crime, WASHINGTON POST, April 21, 2015

Rodriguez v. United States, No. 13-9972 (U.S. Apr. 21, 2015).

Edwardsville Criminal Defense Attorney Reviews K-9 Drug Detection Reliability

Thursday, January 29th, 2015

Law enforcement agencies have been increasingly dependent on drug-detection K-9’s, but are their results reliable in court?

A K-9 must have completed a training course and be certified in order to be used on the field or for a K-9’s alerts to be recognized by a court. In the recent years, the effectiveness and reliability of K-9 and K-9 training have been raising questions that have lead courts to re-evaluate the proper approach of assessing K-9 searches.

The K-9 training course and requirements vary per state. Some state legislatures have been implementing laws in order to have a statewide standard. For example, in Illinois, the Illinois General Assembly passed a law requiring a K-9 to undergo training and obtain certification under a standard similar to that of the Scientific Working Group on Dog and Orthogonal Detector Guidelines (SWGDOG). SWGDOG is a nationwide standard that was established to develop a consensus-based ‘best practice’ system to enhance the performance of K-9 teams and to optimize their use in combination with electronic detectors. SWGDOG was established in order to improve the reliability of a K-9’s alert during a search, the evidence of that search and the K-9’s training presented in court. Under the Illinois law, 50 ILCS 705/10.12, law enforcement agencies must have their K-9 annually certified, each time meeting the stated requirements designated by the Illinois General Assembly Board.

Majority of courts, both state and federal, treat K-9 alerts as per se probable cause when the K-9 is trained and reliable. Until recently, these courts were quick to find this standard based simply on affidavits from the dog’s officer or handler stating their dog was trained or certified. Then in recent years, courts began applying limitations as to the factors considered when determining a K-9’s reliability. Particularly, in Florida v. Harris, the U.S. Supreme Court held that each party should be allowed to make their best case in order to prove that the K-9’s performance was reliable, as oppose to Florida’s previous “check list” test, as described below.

When a court tests whether an officer has probable cause to conduct a search all that is required is the kind of “fair probability” on which “reasonable and prudent people act.” The Florida Supreme Court had created a strict evidentiary checklist to assess a drug-detection K-9’s reliability, where the State would need to introduce comprehensive documentation of the K-9’s prior hits and misses in the field. The U.S. Supreme Court quickly dismissed this, reasoning that this caused too many inaccuracies, especially with false alerts—both positives and negatives. For that reason, the U.S. Supreme Court found that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust the K-9’s alert. However, the Supreme Court also found that the defendant must have an opportunity to challenge such evidence of a K-9’s reliability. For example, the defendant may contest the adequacy of a certification or training program, examine how the K-9 or the handler performed in the assessments, or even say the officer cued the K-9.

Dogs are creatures of habit and officers or handlers can create subtle cues, whether intentional or unintentional, which can cue the K-9 to alert during a search, especially when the officer or handler has reason to believe there is contraband present. Unfortunately, courts regularly overlook this fact. Judges often trust the testimony of a K-9 officer because they fail to recognize the K-9 officer or handler’s role in or effect on a search. This leads to another weakness in the use of a K-9.

Moreover, problems like residue or trace odors may trigger a false positive alert.  These false positive alerts, which can be caused by previous contact with a narcotic by either the serchee or a third party, leads the K-9’s officer or handler to believe there is probable cause.  Even if the alert is valid, the alert is often to the odor of a narcotic, which the K-9 is trained to detect, and not the presence of the actual contraband. In these cases, the officer does not meet the proper requirements needed to perform a search and is therefore violating the serchees Fourth Amendment rights.

The Illinois Appellate Court recently decided a case based on the U.S. Supreme Court’s decision in Florida v. Harris. In People v. Litwhiler, the defendant’s conviction resulted from a traffic stop during which a police officer found the defendant in possession of a controlled substance. The K-9’s handler testified that the K-9 used during the traffic stop was certified in a ten-week training session where it was taught apprehension, tracking, and the detection and recognition of different scents and odors of contraband. In addition, the handler was certified and the K-9 was re-certified two times a year to do narcotic and apprehension work.  The defendant argued that the K-9 was not sufficiently certified; yet the court found that the record proved otherwise. The record indicated that 66% of the time the K-9 alerted, narcotics were found. This, along with other evidence, lead the court to hold that the field alert statistics and the handler’s testimony were sufficient to satisfy the State’s burden of proving the K-9’s reliability.

Court decisions and legislations, like the one passed by the Illinois General Assembly, are increasingly testing the limits of a K-9’s use in the field by law enforcement officers. Although most cases will be decided on a case to case basis, these changes will lead courts to take a second look at a K-9’s reliability when convicting a defendant based on a K-9’s alert.


Florida v. Clayton Harris, 133 S.Ct. 1050, (2013).

Jeff Weiner, Police K-9’s and the Constitution: What Every Lawyer and Judge Should Know, The Champion, April 2012.

Patrick Yeagle, Drug Dogs Fail the Sniff Test, Illinois Times, January 9, 2014.

People v. Litwhiler, 12 N.E3d 141 (Ill. App. Ct. 2014).

White Collar Crime – Question of Guilty Plea

Wednesday, November 14th, 2012

In January 2009, Allan Sloan, senior editor at large for Fortune Magazine, was interviewed by NPR news. The subject of the interview was putting white collar crime in perspective—historically and recently. White collar crime is misunderstood by the general public because the vast majority of the public does not understand finance. Because our country is in an economic recession, crimes involving money laundering, insider trading and other types of fraud tend to gain much more public attention. Those accused of these crimes find themselves unfairly judged by the court of public opinion before a trial even begins. Sloan mentions in this interview one of the major problems facing those who are charged with these crimes: inconsistent punishments. To quote Sloan, “The thing that bothers me…is that once you’re in the criminal justice system, it becomes a lottery. And if you have a good lawyer and your luck runs, you may get off with probation. If your somebody like…Bernie Evers at WorldCom, he got, I believe 25 years. So you never know how it is going to turn out.” However with good representation and a lawyer who isn’t afraid to take your case to trial, you can rely on more than luck. Often white collar criminals mistakenly believe that their only option is a plea, because they have been found guilty by the court of public opinion before the case is brought to trial. If you are accused of a white collar crime, quickly hire a lawyer who isn’t afraid to fight for you and isn’t afraid to show you acquittals they have received on behalf of other businessmen in your situation.



The Court of Public Opinion: the Defense of Sexual Misconduct charges against Women

Monday, November 12th, 2012

Recently Sarah Jones has been in the spotlight because of accusations of sexual misconduct. Jones was a teacher in Kentucky while also a professional football cheerleader for the Bengals. She was accused of sexual misconduct with a 17-year-old student while in a position of authority over him. She had been in the media before, when a website ( slandered her name, saying she had had sex with all members of the Bengals Football team. Eventually Jones’ plead to a lesser charge, giving up her fight prematurely, likely in part because of the mainstream view of her as a sex kitten. In looking only at the public facts of the case, it can be called into question whether or not Jones’ was in a direct position of authority over the victim at the time the alleged crime was committed.

The public is always quick to judge the accused, but the case seems more severe for a teacher. The public has easy access to photos of Jones dressed in a provocative way: in her Bengal’s cheerleader uniform which emphasizes her cleavage and her toned mid-section. When the public sees a woman dressed in such a way who is in a position of authority over children, they immediately assume guilt without asking for any more information. In Sarah Jones’ case, it has even led to jokes that she is the “female Sandusky,” which she vehemently denies. When public opinion is stacked so hard against you, it can make a case seem impossible to win. In Sarah Jones’ case, it meant pleading to a lesser charge because both the victim and the victim’s family denied she had done anything wrong. When the media takes control of the story, it never allows for the accused to speak out in their own defense. If this has happened to you, understand that you are not alone and your case can be won. Look for a lawyer who is not afraid to take your case to trial and who will stand up for your side of the story.



False Accusations of Molestation: Is it possible Jerry Sandusky is innocent?

Friday, November 9th, 2012

In light of the sentencing that took place today, giving former Penn State football coach Jerry Sandusky 30-60 years in prison for a conviction of child molestation, the discussion should be opened: is it possible that Sandusky is innocent? He has stood by his position of innocence from the beginning of the investigation, even saying that he “know[s he] did not do these alleged disgusting acts.” Those who have come forward accusing Sandusky do stand to gain financially by suing Penn State, but that aside, what else could allow this to happen to an innocent man? When men are friendly, involved and active in the development of youth they can set themselves up as targets for accusations. Should men be afraid to be active in helping the youth of their communities? In 1995, an incident involving Jerry Sandusky and a boy in a locker room had both the alleged victim and the victim’s mother “confused” as to what had taken place. They were unsure if Sandusky’s behavior had crossed any lines, and investigator Jerry Lauro, the caseworker assigned to the incident by the Department of Public Welfare in Harrisburg, thought that the incident fell into a “gray” area concerning “boundary issues.” The boy was then evaluated by a counsellor named John Seasock, who concluded, “There seems to be no incident which could be termed as sexual abuse, nor did there appear to be any sequential pattern of logic and behavior which is usually consistent with adults who have difficulty with sexual abuse of children.” Seasock didn’t think Sandusky was grooming the boy for future sexual assult. Someone, he concluded, should talk to Sandusky about how to “stay out of such gray area situations in the future.” It is possible that many men accused of sexual misconduct toward minors are falsely accused, not because of menacing children who seek to ruin the adult’s reputation, but rather because of a misinterpretation of the situation by those in authority. Those who genuinely care for children will show affection and offer help to those kids. This is where we enter into a gray area. When does the affection go too far?



Can the Government Use GPS Tracking Data without a Search Warrant?

Thursday, November 8th, 2012

Recently, USA v. Jones has landed in judicial limbo. First the conviction and the life sentence that resulted were thrown out in appeal by the Supreme Court on these grounds:
The Supreme Court tossed out GPS data that led to Jones’ conviction, along with Jones’ conviction and life term on Jan. 23 in one of the biggest cases in recent years dealing with technology and a citizens right to avoid unreasonable search and seizure.

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’” Justice Antonin Scalia wrote for the five-justice majority.

That decision, the Obama administration claimed, is “wholly inapplicable” when it comes to cell-site data.

USA v. Jones will soon be re-tried and prosecution will now try to use cell phone records to show where the accused was when making phone calls in 2005. The prosecution had 28 days worth of GPS tracking thrown out of their case because they did not receive a warrant for this information.

Cell-site data has been likened to bank records that can be obtained without a search warrant because they are public documents belonging to a “third party.” The verdict is still out on cell-site data. Will the information stand up in court?

Pseudoephedrine Ban pushed in Southern District of Missouri counties aimed at reducing Drug Crimes

Wednesday, November 7th, 2012

Law officials in Missouri have been pushing to make pseudoephedrine, a key ingredient in the making of crystal meth, a controlled substance. This news comes along with the designation Missouri received of being America’s top methamphetamine producing state. Officials in St. Charles and Franklin counties report that there are enough votes to pass a ban on pseudoephedrine (except in cases where a patient has a prescription from a doctor). The law promises to interrupt the drug crime of cooking meth in southern district of Missouri counties, while also promising to make it much more difficult for consumers to buy the most popular decongestant on the market. Physicians warn that this measure will pack their offices during flu season, making it much easier for the flu to spread. Another worry is that while having good intentions, this law will only stop law abiding citizens from having access to this medicine for legitimate reasons. Those who wish to use the drug to manufacture methamphetamines, will likely find ways around the prescription provision.


Obama Struggles with Hard Questions on Immigration Reform in Univision Interview

Thursday, November 1st, 2012

While President Barack Obama has a decided lead over the Hispanic vote, that did not make his appearance easy on the Spanish language channel Univision. He was asked hard questions that Latinos are very concerned about when voting in the upcoming elections. One interesting question was posed by Jorge Ramos, about why the president had not kept the promise he made to Latinos during his first campaign of comprehensive immigration reform during his first year in office. “With all due respect, a promise is a promise,” Ramos said to Obama in English during the mostly Spanish interview. Obama’s response had to do with a lack of Republican support, the pressing issue of the economic collapse, among other excuses, but he ended by saying that his “biggest failure is that we haven’t gotten comprehensive immigration reform done.” He was also asked hard questions about the economy and the recent Fast and Furious scandal. This was a gun-running operation in which federal agents allowed guns to fall into the hands of Mexican gangsters in order to trace the weapons. The program not only didn’t work, but a U.S. Border Patrol agent, Brian Terry, was killed, with his death linked to the failed operation.

Obama passed the blame for this scandal onto the Bush administration. He said that as soon as Eric Holder, the attorney general, was made aware of the Fast and Furious opperation, he put a stop to it. Obama’s interview took place during the event at the BankUnited Center Field House on the University of Miami campus.

Listen to the full interview and read more by following these links.

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