Bad Legal Advice

Which path will you choose?Are you receiving the best legal assistance possible or are you the recipient of bad legal advice from an ineffective, incompetent, or overworked attorney?

The government has marshaled investigative and prosecutorial resources to pursue criminal charges against you.  In many respects those resources far exceed what is available to average citizens – but that does not require the accused to settle for less than adequate representation.  In fact, justice is not obtained when those accused of breaking the law receive bad legal advice from ineffective, incompetent, or overworked attorneys.

What constitutes bad legal advice and what are the signs of an ineffective or incompetent attorney?  Some of the more egregious that have been documented by the Innocence Project (available here) include falling asleep during trial and being drunk. Townsend v. Burke 1948

Quote - washington1But most are less obvious.  They may not even become evident until it is too late to correct them.  In most instances, however, they present themselves over time and can be categorized as time and information.

TIME

  • Is your attorney always prepared, meaning he does not miss important filing deadlines, does not arrive late (or fail to show up) for court hearings?
  • Does your attorney meet with you before important hearings?
  • Does your attorney take your calls, respond to emails, or otherwise communicate with you to your satisfaction between court hearings?
  • Does your attorney take the time that you need to explain procedural issues, available options, and identify alternatives?
  • Do you have adequate time to make decisions (particularly in terms of plea negotiations)?

If you answered “yes” to these questions, your attorney may be overworked or overextended and unable to devote the necessary time or energy that you deserve.Quote - inadequate investigation

INFORMATION

  • Does your attorney keep you informed of the progress, including offered plea deals, and case strategy?
  • Do you have the “information” necessary to make informed decisions pertaining to case strategy and offered plea deals?
  • Are your questions answered fully (and explained if necessary) and do you understand what is happening in your case?
  • Is there a “team” of people working on your case that includes specialists, investigators, and other experts?
  • Did your attorney consult with independent experts, investigators, or specialists specifically regarding the sentencing outcome (that is in addition to those consulted for purposes of trial)?

If you answered “no” to these questions, your attorney may be ineffective or incompetent.

Most importantly, is your attorney responsive to your needs, concerns, and questions?  That is, do you feel that he works for (or with you) in resolving the case, as opposed to feeling powerless when it comes to making critical decisions and that those decisions are made by the attorney without you?

While you may be guaranteed certain constitutional rights, it is incumbent upon you to exercise those rights – especially when it involves the potential loss of liberty.  You are the client and it is your life that hangs in the balance.  Unless, or until, you choose to stand up for yourself and make yourself heard it is left to chance whether justice is achieved. State v. Taylor

Competent criminal defense attorneys generally follow 8 Steps to prepare for sentencing.  Many of these steps are time and labor intensive and begin immediately upon accepting your case.  Although there are similarities and they can be pursued simultaneously, there are significant differences between preparing for trial and preparing for sentencing.

  1. Conduct a “mitigation” investigation to identify existing factors as well as outline proactive steps that may be undertaken to establish additional evidence that will be relevant to sentencing – should also include a risk assessment to identify criminogenic needs.
  2. Engage in detailed and ongoing discussions regarding pertinent sentencing scenarios.
  3. Explain the sentencing process in its entirety – including the role of probation in preparing the presentence report, the importance of that report, and the fact that most sentencing decisions are made by the judge before even entering the courtroom for the sentencing hearing.
  4. Help prepare for the probation interview and document what is provided to the probation officer preparing the presentence report.
  5. Gather evidence and character references that may be used in mitigation.
  6. Carefully review the presentence report in detail & compare the information provided with what has been documented elsewhere.
  7. Meet with the client before the day of sentencing to review the presentence report and recommendation.
  8. Prepare a detailed and cohesive outline of oral arguments which includes the identification of factual errors, omissions, and/or misrepresentations that have been included in the presentence report.

The most effective criminal defense attorneys engage the services of a sentencing specialist to assist them in preparing for sentencing.  This allows the attorney to focus on trial preparations and/or plea negotiations.  It also enhances the attorney’s ability to consistently deliver the best legal assistance possible.

You do not have to settle for “business as usual” when it comes to your criminal defense.

The rush to condemnation

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DISCLAIMER:  I have no personal knowledge or involvement with the Rambold this case other than what is being reported by the media, most of which originated with the Billings Gazette.   And I am neither defending nor condemning Yellowstone County District Judge G. Todd Baugh for his decisions.  I am only interested in what I may learn from him.

With headlines media coverage from Los Angeles to London and headlines such as:

Judge apologizes for remarks about teen rape victim

Activists to protest judge’s comments in Montana rape case

Montana judge apologizes for criticizing teen rape victim who committed suicide and

Montana judge defends decision to sentence teacher to just 30 days for sex with 14-year-old

One might conclude that Billings, Montana does not consider the rape of a 14 year old student is a serious offense.  These headlines, and others like them, galvanize people into action with a rush of condemnation, often overlooking or dismissing critical pieces of information.

There are two crucial elements of good decision-making that should precede taking action.  First, access to ALL relevant information – in this instance, that means reading the entire Gazette story rather than assuming the headline and first few paragraphs conveys all the necessary information.

Second, analysis of ALL relevant information – in this instance, that could possibly include setting aside preconceived ideas or beliefs and seeing how the information fits together as a whole.

How often are lives changed (or lost) because the decision-maker did not gain access to the relevant information or analyze what information was available objectively before rushing to condemn or judge?

Some have argued that the United States and its allies rushed to condemn Iraq for possessing weapons of mass destruction.  Today, the U.S. may be following a similar path in its condemnation of Syria for using chemical weapons against its own people.

But do our leaders have all of the relevant information to make an informed decision and have they viewed it objectively?  Or are they simply pursuing an agenda?

Let me be clear, I am not suggesting by any stretch of the imagination that it is ever okay for a teacher (or anyone else) to rape a 14 year old student; nor is it acceptable for Syria (or anyone) to use chemical weapons.  But there is almost always more to the story, a fact made famous by the legendary Paul Harvey.

And yes, there is more to the story out of Montana.  While the headlines proclaim that Judge Baugh sentenced a rapist to only 30 days in jail and the victim committed suicide.  It is only after reading the entire story that the entire story is revealed.  And for those unfamiliar with the nuances of America’s justice system it is easy to overlook important facts.

Stacey Dean Rambold was a business and technology teacher in Billings, Montana.  In 2008 it was alleged that he raped a 14 year old student.  He was suspended and later resigned from his teaching position and he was charged with three felony sex offenses.  In 2010, while the case was pending in criminal court, the victim committed suicide.

Instead of dismissing charges against Rambold following the victim’s death, prosecutors negotiated a “deferred prosecution agreement” with Rambold’s defense counsel.  As a result of this agreement the government was spared the burden of proving guilt beyond a reasonable doubt at trial (Rambold was required to sign an admission of guilt) AND they could compel Rambold to complete sex offender treatment.

Although the specific terms of the agreement were not included in the news story, it is apparent that Rambold was not required to be incarcerated.  For his part, Rambold would be spared the indignity of a criminal conviction and registration as a sexual offender if he complied with the terms of the agreement.

In other words, the state was okay with Rambold not being incarcerated, or having to register as a sex offender, or having a felony conviction – as long as he completed a sex offender treatment program.

In December 2012 Rambold was terminated from a sex offender program when the staff determined that he violated program rules.  He began treatment with a different program but prosecutors sought enforcement of the “deferred prosecution agreement” for his failure to complete the first program.

That is what led to the sentencing hearing on Monday.  Because he violated the treatment program’s rules and was terminated from the program Rambold was sentenced to 30 days in jail, the felony conviction was entered on the record, he was placed on probation, and is now required to register as a sex offender.

While it may factually be correct that Rambold was only sentenced to 30 days for the rape of a 14 year old student, it does not convey what actually occurred.

But that is not headline material.  It does not compel a rush to judgment or necessitate immediate action.  In much the same way that knowing Iraq once had weapons of mass destruction but did not possess them in 2003 would have negated the urgency for the U.S. and its allies to overthrow Saddam Hussein’s regime.

Whether it is a decision to invade another country or to commit someone to prison, context matters when lives will be forever changed – and this story from Montana provides a prime example of the importance of information, and the willingness to use it, in decision-making.

Unfortunately for Judge Baugh, he said some really stupid things that also made for great headlines.  As is frequently the case, there is a time, a place, and a manner to do things.  There is a time to apologize.  There is a place to apologize.  There is a manner to apologize.  Judge Baugh failed at all three.

This role reversal offers an opportunity for those involved in the justice system (by that I mean it is usually the defendant who say stupid things and not the judge).  I suggest that there are three lessons that can be learned from the Montana story:

  1. Seek first to understand: decision-making requires access to information and the willingness to look beyond the headlines, especially when it contradicts a belief or assumed facts because the rush to condemn a man will inevitably lead to bad decisions.  The “rest of the story” is just as important as the headline and the best decisions are made only after being fully informed and exploring whatever alternatives may be available.
  2. Focus on what matters:  in this instance, what matters is that Thurgold be held accountable for his actions.  Based on results, in 2010 what mattered was that he acknowledge his crime and that he complete treatment.   Today what matters is that he is held accountable for violating the first program’s rules but Judge Baugh’s comments during sentencing were a distraction.  In essence, the story became about Judge Baugh and not about the rape or rule violation.  His comments diverted the focus away from Thurgold and the deferred prosecution agreement, rendering it as little more than a footnote.
  3. Shut-up, listen, and learn: sometimes, talking just makes it worse.  In this instance, Judge Baugh’s attempted apology only made it worse.  Rather than listening and learning from the misstatements on the bench, he tried explaining and defending – neither of which is conducive to learning or hearing, and both of which only compound the problem.

Do you have ALL the information necessary to make an informed decision?