Archive for month: November, 2019

Series featuring lawyers have been a staple on television since the first set flickered to life decades ago. Along with attracting millions of viewers, the shows shaped America’s perception of the criminal justice system. For instance, according to TV, crimes were committed, investigations conducted, and trials held in an hour, minus 14 minutes of commercials.

Those devoted to Perry Mason, the Defenders, Judd for the Defense, LA Law, the Defenders, or Matlock believed defendants would always be acquitted in the last five or ten minutes of the show—usually as the result of the real villain being unmasked in court. Fans of the various iterations of Law and Order know one thing for sure: the bad guy or guys are going down and then they’re going up the river—usually for decades.

After 34 years of practicing criminal law, I’ve learned one thing: the legal world portrayed on TV is a fantasy. First of all, it can take years to investigate a criminal case, research the applicable law, file briefs and motions, consider plea deals, and if necessary try the case in court.

Second, winning a criminal case is not anywhere near as easy as Perry Mason makes it seem. I’ve won hundreds, but each one has been a long, uphill battle waged against talented prosecutors who walk into court confident they have the evidence that will convict my client.

And, I can tell you from personal experience U.S. attorneys, who have all the resources of the federal government at their disposal, are the most confident of all. There may only be one or two lawyers from the Justice Department in court, but when I look over at the prosecution table, I see thousands of FBI/DEA/ATF agents, forensic experts with PhDs from Harvard and MIT, and an army of highly trained paralegals who do nothing but help the attorneys I’m facing prepare the government’s case. It’s an intimidating situation to say the least.

But even though Jack McCoy may win every time on TV, it is possible to mount a defense that results in the dismissal of the charges filed against my client or a “not guilty” verdict from a judge or jury. It’s important to note, however, that I’ve never achieved that outcome by cross-examining a witness so adroitly that they break down and confess to the crime while on the stand.

So what does it take to win? Hard work, knowledge of the law and how to apply it, a fair amount of theatrical skills, and total commitment to seeking and securing justice for my clients.

Here’s an example of how the legal system works in the real world.

In the early morning of June 1, 2016, Warren, Ohio police officers who had responded to a house alarm entered the home in question to investigate a burglary and shooting incident that had taken place at the residence. While walking through the home they noticed what they believed was evidence of narcotics trafficking. Based on that observation, the police obtained a warrant, searched the home and found drugs, drug paraphernalia, money, and loaded firearms.  I’m sure you won’t be shocked to learn that the homeowners were soon indicted and charged with a number of drug and firearms-related offenses.

So far so good, right?

Well, actually no, because after reviewing the facts and the law, I concluded that the police had violated my clients’ Fourth Amendment rights. Just about everyone is familiar with the First and

Second Amendments, but believe me, the Fourth is just as important because it’s the one that protects all of us against unreasonable searches and seizures.

In light of the Fourth Amendment violations, I filed a motion in Federal Court to suppress the evidence in the case. Not surprisingly, the Justice Department opposed my motion. On August 7, 2019, more than three years after my clients were arrested, Federal Judge Christopher Boyko conducted an evidentiary hearing on the matter. On August 21, he issued this ruling:

Law enforcement did not have consent to enter the Residence a third time and process the scene for evidence related to the burglary and assault on police. And since police did not have a warrant, the third reentry was unreasonable and therefore a violation of the Fourth Amendment. Since Detective Gambill based her Affidavit for a search warrant on facts she uncovered during the third reentry, those facts must be excised from the Affidavit. Finally, the Government failed to establish by a preponderance that the evidence it seeks to introduce would have been inevitably discovered in a lawful manner. Thus, any evidence uncovered or learned about during Detective Laprocina’ s search of the Residence must be excluded. Defendants’ Motions to Suppress are GRANTED. You can read Judge Boyko’s order in its entirety here: Opinion and Order (002)

What does the decision prove?

It proves that cases can take years to work their way through the criminal justice system.

It proves that the government must play by the rules. Please don’t underestimate how important this is. As I noted earlier, the government possesses awesome power. If police and prosecutors abuse it by ignoring the Constitution they are undermining the rule of law, endangering the freedoms we hold dear, and placing all of us, including law-abiding citizens, in jeopardy.

It proves that a skilled, knowledgeable, experienced, and dedicated attorney can take on the federal government and prevail.

Victories like this, which demonstrate the fundamental strength and fairness of our judicial system, make me proud to be an American and an attorney.

And I have to admit, as I read Judge Boyko’s order, I could swear I heard the Perry Mason theme song playing softly in the background…