Why It’s in Your Best Interest to be Real with Your Defense Attorney
Before we start with our discussion, please know that this is not a discussion of the “Attorney-Client Privilege”, nor is it a discussion of the principles of confidentiality as between attorneys and their clients. At the bottom of this article, I have included a citation to the New Jersey Rules of Professional Conduct (Section 1.6) governing Confidential Information for your convenience. An article discussing the difference between privileged and confidential information will be forthcoming.
In my experience, when potential clients meet with me to discuss their case, they often exercise a selective memory. It's a mystery to me why clients cherry-pick the facts favorable to their defense, and at the same time, omit those aspects of their case that are most damaging. They are accused of committing a crime, yet anyone who hears their version of events has no choice but to believe they’ve been wrongly accused. The more they describe their experience, the more eager I become to obtain the Discovery in their case. For a brief overview of Discovery, click here.
I can only theorize that the reason for omitting crucial facts about their case may be motivated by a belief that their own defense attorney won't find out about it. I mean, why would a potential client not tell me something important about their case? Wouldn’t it be logical to tell the person you’re paying to defend you, that you provided the police with a full confession after you were properly Mirandized?
Bergen County Criminal Lawyer
We have represented many clients facing serious second degree Burglary charges. But on one occasion, we were retained to represent a man charged with second-degree Burglary, Home-Invasion, and Kidnapping. A conviction for a second-degree crime carries a state prison term of five (5) to ten (10) years. There is a presumption of incarceration. This means that the defendant will almost certainly go to jail. When someone is convicted of a second-degree crime, the court may also impose a high fine.
Given the severity of the charge, the client was in jail on a high bail. The client's mother met with us and explained that her son (client) was wrongly accused. She elaborated that her son was a refrigerator repairman and happened to be at the wrong place, at the wrong time. According to the mother, while the client was repairing the refrigerator of a poor and lonely widow, a gang of thieves broke through the front door and attacked both the widow and her son.
Her son was just as much a victim as the widow. The violent thieves escaped while her son was wrongfully arrested perpetrating this violent crime. The mother went as far as explaining to me that the widow lost consciousness during the attack. When the widow and client regained consciousness (at the exact same time), the widow erroneously (mistakenly) pointed to the client and identified him as the thief.
Was the mother's story possible? Was this sad, suffering mother being sincere? Difficult to believe, but yet, as lawyers we learn early on: "You can't make this stuff up". Perhaps the poor chap was indeed innocent.
So what would any good defense attorney do next? I visit the client in jail.
Bergen County Criminal Lawyer
After going through a dozen doors and entering and exiting numerous hallways, I successfully complete the jail maze and arrive at the cheese. In this case, the cheese is the attorney-client visitor center.
There's no window separating us. There's a huge red emergency button to the right of the table in case things get thick. The client has his ankles shackled to his wrists and walks by means of dragging his feet a few inches at a time. He is in his late forties with a fully grown beard and sad eyes. He's looking at me like he's the victim in this situation. Fully equipped with my pen and legal pad, I start my interview. Okay client, tell me what happened.
He explains that he's a professional auto-body mechanic. He is highly skilled in renovating cars that have been damaged in accidents. According to the client, he was working on the widow's 1978 Dodge Dart that was parked in her driveway. Come again? Two lies in two seconds. Does the '78 Dodge Dart have a fridge anywhere inside of it? The client’s mother told me he was a refrigerator repairman and now he’s been promoted to professional auto-body mechanic.
Alarms go off in my noodle, but I reveal nothing. I show no skepticism. He proceeds to weave a story that has nothing in common with the story his mother (through tears) shared in my office. In his story, he was laying in the widow’s driveway, fixing the rear bumper of her antique when he heard a bone-chilling shriek from inside her home. Instantly, he got out from beneath the car and started to run to her aid.
However, before running heroically into her home, he instinctively grabbed his tool bag. It was a mere coincidence that the bag contained a mini-sledgehammer, four sets of pliers, twelve feet of rope, multiple rolls of duct tape, a sophisticated lock-picking tool and every burglary-type contraption any self-respecting burglar would have. The needle on my personal lie-detector goes berserk from all the lies. The sheer volume of lies, piled upon lies, piled upon more lies, no longer angered me; at this point, I am captivated.
I'm no longer an attorney. I'm an "observer" of the human mind's capacity for perpetuating deception. I read somewhere that pathological liars believe there own lies. Here's this guy sitting across from me (with sad eyes) and there's not an iota of shame in his demeanor. The opposite is true; there's a hint of pride that his audience may believe his lie. Then, I second-guess myself and wonder if he’s crazy. Should I file a Motion for a Competency Evaluation?
We’ll get back to our burglar in a minute.
The purpose of this article is to help people accused of crimes. I wrote this to help you save time and money and increase the likelihood of obtaining the best result in your particular case. For this reason, please understand that the best clients help themselves by divulging everything about their case, good and bad, to their attorney.
as defense attorneys, We will find out sooner or later. All of the evidence, good and bad, will inevitably surface. By law, defense attorneys will receive absolutely every piece of evidence in each client's case. It is called Discovery. If the police have evidence that proves a defendant’s innocence or mitigates (lessens) their guilt, then this evidence must be provided to the defense team. Prosecutors can never withhold any piece of evidence. It’s called a Brady Violation and the consequences are extremely severe.
If you know that you were caught on camera stealing from your employer, we will find out. We will be given a copy of the video surveillance. If you were charged with five crimes, don't walk into a defense attorney's office and omit three from your story. By deliberately misleading your own attorney, you are doing yourself a disservice. Aside from ruining your credibility and damaging your relationship with your own attorney, that attorney can never properly prepare a defense for you.
For example, if you are charged with aggravated assault for breaking another guy’s nose, one of the defenses you may have available is “Self-Defense”. Your version of the story placed you in the role of the victim, so your attorney started preparing a "Self-Defense" claim on your behalf. But wait a minute! Now there's a video on Youtube (taken with an iPhone) that clearly shows that you were the aggressor. The Self-Defense theory disappears, as well as, all of the attorney’s work (along with your fees).
Remember this: facts make cases. If you omit, add, embellish, minimize, exaggerate, downplay, ignore, include, or taint and paint your story in any way, you are only hurting yourself.
Let's get back to my client.
Although I have serious trust issues with this client, I accept representation. I file my appearance, plead Not Guilty, and request from the Prosecutor all Discovery. Within a few weeks, I receive an enormous package from the Prosecutor's office. It's filled with police reports, witness statements, the client's criminal case history, and DVDs.
Client's story did not align with the State's evidence. The allegations were as follows:
On a Monday morning, during the late morning hours, client allegedly knocked on the victim's front door. When she opened the door, he stormed in. He punched her in the jaw and knocked her to the ground. She lay semi-unconscious. She was moaning while he tried to hog-tie her. She was flat on her stomach while he wrestled with her arms. He planned this whole thing out. Tip: premeditation escalates the grading of a crime. The more time and effort someone invests in committing a crime, the eviler they are considered to be. (Yes, the word “eviler” really exists. The greater the evil, the greater the punishment. People say and do stupid things in the heat of the moment. But to plan out a violent crime like this takes the case out of the defensible and into the INdefensible category.
In this case, the client had cased (observed) the widow for months and learned that she lived alone. She worked as a waitress and kept all of the cash she earned at home. She lived in a bad area and never wanted to deposit the money in the bank to avoid being robbed. Crazy right? As this nightmare unfolds, don’t lose hope, there is a hero in the story.
As widow's fate would have it, her 35-year-old, six-foot-nine, 320 lb. son was visiting from Texas. He flew in the night before and just happened to be staying with her this morning. The client did not stand a chance. Once the son heard his mother scream, he stormed down the stairs from his second-floor bedroom and pounced client. The giant PUMMELED the client to the floor and went to town MMA-style. Laying next to client was the DUFFEL bag full of burglary tools.
How does a defense attorney ever begin to defend a case with these facts? Impossible right? Keep reading, it gets worse.
After I read all of the police reports and witness statements, I popped the DVD into the PC. I think I gave it away earlier, but in case you missed it, the video shows the Detectives and client in a police interrogation room. Detectives slowly, very slowly, read client his Miranda rights and of course, he waives away all of his rights and starts talking.
The client provided one of the most eloquent and detailed confessions I had ever seen. His memory of the event was stellar. His recollection of all the details was flawless. He didn't want to disappoint the Detectives so he insisted on confessing to other home-invasions where he was successful. The Detectives asked if he would be so kind as to show them the other homes where his victims lived and he agreed. They took a drive down memory lane and client showed them every home he robbed.
As of the writing of this article, the client is still incarcerated in one of New Jersey's finest prisons.
The case I shared in this article is rare. Clients rarely lie to me to the extent that the client and his family lied to me in this case. However, the lesson is to tell your attorney the truth the best you can. No one has a perfect recollection of every detail of a given incident. However, you will remember if you were arrested for marijuana possession when you got pulled over for speeding. Tell me about all about how the officer smelled a strong odor of marijuana emanating from your vehicle…come on, keep it real!
For your convenience, please see the following rules governing the New Jersey Attorney/Client Confidentiality Rules:
The New Jersey Rules of Professional Conduct (RPC)
1.6 Confidentiality of Information states:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c), and (d). Click Here for Complete NJ RPC 1.6
About the AUTHOR
Mr. Peyrouton is a Criminal Defense Attorney at Peyrouton Law in Hackensack, Bergen County, NJ.